Perry on Raz, Authority, and Anarchism
Stephen Perry’s commentary raised a number of quite interesting issues about the right way to understand Raz’s account of the authority of law and its compatibility with the kind of “descriptive” jurisprudence to which Raz and Hart (and me, in a different way) are committed. When Professor Perry’s paper is publicly available, I will try to address some of those issues, but for now I wanted to at least record one point on which I clearly misconstrued Perry in Chapter 6 of my book (“Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence”). In an earlier paper, Perry had written: “If [the service conception of authority] is right, then the anarchist thesis that the state could never have the moral authority it claims is wrong.” I critiqued this as follows (p. 172 of my book):
Raz’s account of authority is perfectly compatible with ‘the anarchist thesis that the state [more precisely, the laws of the state] could never have the moral authority it claims,’ because Raz’s thesis is only that all laws (sincerely) claim moral authority, not that they actually have it. The anarchist thesis, in Razian terms, is simply the claim that law always fails to satisfy the Normal Justification Thesis. Nothing in Raz’s theory of authority or of law precludes it.
What Perry meant, however, is that the anarchist thesis that authority is impossible is wrong if Raz’s service conception of authority is plausible, and that’s right: the service conception of authority explains how someone can have a justified claim of authority over another (rational, autonomous etc.) person, which the (Wolffian) anarchist denies is possible. It is true that the service conception of authority is compatible with the anarchist claim that no state ever has authority, but that was not, in fact, the anarchist thesis at issue for Perry.