RAZ

Prof John Strawson

Video Transcript
Welcome to this lecture on the work of Joseph Raz. Joseph Raz was probably the last of the great
Oxford jurists of the 20th century. He sadly died last year at the age of 83, having spent a career of
over 50 years in developing ideas about law, but also about political and moral philosophy. His
work was inspired by HLA Hart, and his work is a major contribution to legal theory. He is perhaps,
as I said, a great giant of the 20th century coming to us still working in the 21st. His relationship to
HLA Hart is extremely important because, to some extent, it is building upon the work of Hart that
Raz first became very famous.
He is particularly known for three books that made his career, but he wrote many books and
articles in addition, but particularly, The Concept of a Legal System, Practical Reason and Norms,
and The Authority of Law. In this lecture, I'm going to talk first briefly about who Joseph Raz was,
and then to look at his main contribution on the question of the authority of the law and how that fits
into his understanding of the rule of law.
Joseph Raz was born in Haifa in British Mandate Palestine. His name at birth was Joseph
Zaltsman. His parents were refugees from Ukraine, and he studied at the Hebrew University of
Jerusalem where he gained his law degree. He changed his name to Raz or his surname to Raz
on his marriage to Yael Rappeport. When he chose the name Raz, which in Hebrew means secret,
but he chose it because Rappeport begins with R and Zaltsman, his original name begins with Z.
Raz met HLA Hart when Hart was on a visit to the Hebrew University, and the young Raz
impressed Hart. As a consequence, Raz eventually went to Oxford to do his PhD under HLA Hart.
After a short period of returning to teach at the Hebrew University of Jerusalem, Raz left again for
Oxford, where he spent, I suppose, the bulk of his career, where he grew to become the professor
of the philosophy of law. He also, in later life, held important positions at the Columbia University in
New York and at King's College London.
Raz's ideas have to be seen in the concept of his overall analysis of life. What is he trying to do?
He's trying to work out how human beings have a place within the world. His view of the world is
understood as a relationship between the individual and a society in which he lives. As Martha
Nussbaum says, for Raz, the very personal and political value is autonomy. It is the key concept
for Raz, of autonomy, that is the powers of self-direction and self-government.
In addition to being known as a sophisticated positivist, he's also known as someone who has
developed the ideas that are associated with perfectionist liberalism. Raz begins to look at the
world from the point of view of how the individual relates to the world. In particular, picking up on
the notion that HLA Hart develops, particularly in his concept of law. That law is not just a question
of power. It is also, and fundamentally bound up with a question of authority. Therefore, much of
Raz's work is concerned with analyzing the relationship between the individual with authority. In
particular, what is the relationship of the individual to the authority that law is? Law, for Raz, and
following on from HART, is an authoritative system. Law exists as a way of structuring society but it
is valid because it is an authority. Raz's first problem is to help us understand how the individual
deals with authority. His starting point is what he sees and what he's seen in philosophy, in
general, is the often apparent contradiction between authority and reason. The individual has
reason. The reason that we decide to embark upon particular actions are because we weigh up the

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issues before us. We make a decision usually upon the balance of reason. Simply put, if we are
looking for a mobile phone, we think about how much money we have. We think about what
specifications we require of a mobile phone. We then perhaps look through the various consumer
reports. We weigh up the difference between a Samsung and an iPhone, and a Huawei. We see
how much they cost. We decide what we need for our purposes, and as a consequence of all this
information, we make a decision.
When it comes to following law, which Raz often talks of as a practical authority, Raz notices, of
course, that that process of reasoning simply doesn't take place. If law lays down a series of
normative provisions, authoritative directions, we are no longer able to engage in a discussion of
the balance of reasons as to why we might or might not agree with this particular provision. We
actually are bound to abide by it.
As philosophers, particularly within the Western tradition have noted since Plato, this creates a
series of paradoxes of how we understand authority. Do we follow an authority because we agree
with it? Do we follow an authority Because we are compelled to do something? If we are compelled
to do something, if that compulsion goes against our reason, is it, therefore, irrational to go along
with that authority? Now, of course, law contains a whole variety of authoritative directions. They
stretch from simple rules about which side of the road to drive on, stopping at a red light, how to
draw up a will, how to draw up a contract, to provisions about treason, and murder, and theft, and
fraud. All of those questions, all of those issues make us think quite carefully about why we are
abiding by those provisions. The smaller provisions, stopping at the red light, for example, in a way
is not a major problem. It is convenient. Raz notices that very convenience, that stopping in a red
light means that we know that we can rely on the fact that other people will stop at a red light, and
therefore, social order in the means of transportation will be relatively safe. We can trust in this, it
creates a social order. We, therefore, through our decision to accept this authoritative direction,
allows us to be able to continue our life as an individual but also cooperating with others. In other
words, we can drive cars, cross roads relatively safely.
Of course, when it comes to other questions of law, the questions of treason, questions of theft, of
what we understand by theft, those things might be more complex, but in a sense, says Raz, they
actually are not so very different. That we need a society in which we have a degree of stability, in
which social order is maintained, and in which we as individuals can continue to operate and to live
our lives. Having autonomy means that we need to leave to others and to other authoritative
systems, aspects of life so we can continue to determine other aspects of our personal,
professional, and creative lives.
As we know, it is precisely in this conception, within this view, that Raz begins to develop what we
have now become to call the service conception of authority. In other words, it is not irrational to
follow an authority because to do so makes it much more convenient and allows us as a
consequence to get on with our lives. We do not know the intricacies of how it came about that in
some countries, you drive on the left and others on the right. Actually, to be honest, it doesn't
matter provided we all know which side it is. Therefore, in a sense, it relieves us of the task of
trying to work it out. Indeed, we cannot work it out individually, we can only work it out collectively.
As a consequence, authority, in that sense, provides us with a service. It relieves us of having to
devote our reason in order to establish whether or not we should do particular acts, which is why,
of course, Raz, talks about an area of exclusionary reasons. In other words, what law provides us
with is a whole series of provisions in our own lives, if you like, where we have no need to reason
because the reason has been done for us by the authority.
Of course, that raises many questions about how authority operates, in general, throughout
society. Therefore, Raz looks at different types of authority and tries to, as a consequence, get to
grips with what is taking place when we accept and when we engage with authorities. Of course,
authorities are not just the practical authority of law, they're also, he suggests, a whole series of
theoretical authorities, academic expertise, medicine, indeed legal advice would, of course, fall into

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those theoretical authorities. Quite a lot of the examples given are, of course, to do with medicine.
Here, in a way, is how one account of Raz's theories is developed. The account goes like this:
We have a complaint, we go to a doctor. The doctor looks at our complaint. [coughs] It might be,
looked at a rash, it might be, takes an x-ray, it might be to take a blood test. As a consequence of
the tests or of looking at the rash, or of the x-ray, the doctor and maybe consultants as well, will
give us an idea of what we are suffering from. Will give us a diagnosis, and it will then give us a
prognosis of how the disease is, and it will then give us some idea of treatment. In this account, the
doctor is acting as an authority, a theoretical authority, but also notice it has practical
consequences. Do we take the prescription or take the advice of the doctor to treat the complaint
that we have? The overwhelming analysis, the overwhelming view is that we take the advice
because we are not medics, that we haven't studied medicine. We haven't done the seven years of
training, and the seven years of training is built on hundreds of years of experience of medicine.
That it is claimed it would be irrational not to accept the advice of the doctor and to undertake the
treatment. Here, it is said, is another example of the service conception of authority.
That we don't need to be doctors to get on with our lives, but we do need doctors in order to
continue to live a healthy life. We rely upon their expertise, and therefore, it is said it would be
irrational not to accept the advice of the doctor, to take the treatment or the medicine, which is
going to be prescribed in order to deal with your illness. However, of course, this raises some
problems when we begin to think about the question of medical advice. Particularly in English law,
medical advice, of course, comes with the notion of informed consent.
It is well known that every treatment comes with counter-indications. It comes possibly with side
effects, some of which could be serious. The patient, in order to undergo any serious treatment for
a serious disease, and to have an operation, is required under English law to sign that they have
consented and that they have consented as a consequence that they know the information. It is no
longer quite true actually, that when you get the advice of a doctor, that you are simply basing your
decision to go along with the doctor on the basis of their authority because the law has increasingly
given the individual this notion of informed consent.
Of course, many of us, having got a diagnosis and a prognosis might decide that we want to seek
a second opinion. In other words, we're in the process of deliberating as to what we should do.
Then, of course, we go to another authority, another doctor. If the doctor has different advice or
thinks there is a different diagnosis, or a different prognosis, or a different treatment, then the
individual has the dilemma of deciding between the two authorities. It is not always the case that
these theoretical authorities act precisely in the way in which the simple explanation, that we find it
convenient. This may be true that for minor ailments, that is precisely how we act in relationship to
the medical advice. The more serious the issue, probably, the more likely we are to question and to
think about a second opinion.
That's one kind of authority. What Raz tries to do is to remind us that authorities give different
instruments to us. The doctor is giving us advice. It is not presumed that we will act upon that
advice, it is indeed up to us. The doctor will say, "Take this course of tablets, I think that in 10 days,
you will begin to feel better." You get home with the tablets, you read the leaflet which comes with
the tablets. You perhaps are slightly worried about the side effects or the counter-indications, and
as a consequence, you decide not to take the medicine. It might be a risk, but nonetheless, that
gives the indication that you're not actually presupposed to take the action when you get some
advice.
There are also requests, a request to act does presuppose an action. If you are requested by the
police, for instance, to go down a road because there's a blockage in another, that presupposes
there's going to be an action. Now, behind the policeman or woman, there is undoubtedly an
authoritative direction, but you might decide to give up your journey. You might decide not to
continue. The request is slightly different.

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Very different to an order. If you are given an order, it definitely presupposes that there will be
action. Law, in a sense, is precisely a series of orders. Authoritative directions are orders which we
are going to carry out or that we have to carry out. Even if we don't carry out them, there will be
some serious consequences as a consequence. Raz, in other words, is trying to get us by thinking
in terms of the way in which authority works, to look at different ways in which authority works, and
to ask us to think about the manner in which our actions are determined by our relationship to
authority, and suggest that it is not irrational to follow or authorities because they provide a useful
service for us and they allow us to get on with the rest of our lives.
Now, of course, this has to be looked at in the context of how Raz also understands the operation
of the law. Bear in mind that, for Raz, his proposition is always that it is the autonomous individual
which we have to see at the center of society. It is not a society of automatons, but of the
autonomous individual. That the whole purpose of creating a society is to empower the individual
to act in the way in which they want. It is, of course, for this reason, that he sees a very big
distinction between law and morality. It is not that Raz, as indeed with most positivists, is
unconcerned with morality. Indeed, Raz is very concerned with morality and believes that morality
is precisely that category of life, which we should have autonomy over, and that the law should not
be validated by morality, or should not have its main purpose the enforcement of morality because
for the autonomous individual to exist, we have to have pluralism. In other words, the maximum
choice. The reason that we obey the law is not because we think it is in content, morally correct.
We obey the law because we think that is the morally correct thing to do, which is quite different. In
other words, the validity of the law does not stem from morality because if it stemmed from
morality, that would undermine the idea of pluralism in which we have a choice of morality.
Obeying the law is itself a value, an important moral virtue because it allows our societies to
operate and it gives us the ability to develop our own moral thinking.
How does law and the rule of law operate? For Raz, the rule of law is essentially a negative value.
He says law inevitably creates the dangers of arbitrary power. The rule of law is designed to
minimize that danger that can be created by the law itself.
Now, of course, as we said, just a while ago, law is not validated by its moral content. It has,
undoubtedly, a content which might well come from morality, the dominant morality of a society,
but it's not that moral content which gives it its validity. Indeed, as Raz points out, law can include a
whole host of positions, which we would regard to be as unacceptable. Historically, after all, law
has enforced slavery, racial, sex, and gender discrimination. It has not been necessarily protective
of what we would now call human rights. What is law? For Raz, law is an instrument.
He uses the example of another instrument, which is the knife. He points out that an instrument
can be used for good or ill. A knife can be used to cut up a meal, to prepare a meal for a child, or it
can be used to stab someone to death. The same instrument. He says that's the problem with law.
That law is like an instrument, like a knife. Therefore, we have to think quite carefully about how
the law operates. Which is why he thinks the rule of law is quite important. The law to be law must
be capable of guiding behavior however inefficiently.
In other words, for Raz, the key test for law is that it is effective. Effective in what? In guiding
human behavior. It may not always be successful, and we know that is the case because with
criminal law and indeed with private law, we often see egregious breaches. Basically, the point
about the authority, direction of law is that it guides this behavior. He says it is the virtue of
efficiency, the virtue of an instrument as an instrument. For the law, this is the virtue of the rule of
law. Thus the rule of law is an inherent virtue of the law, but not a moral virtue as such. He then
talks to us about and elaborates how we understand the rule of law.
The reason that we need the rule of law is because law itself can be arbitrary, and we need the
rule of law to correct it. He gives us several criteria, eight criteria, which he thinks need to exist for
us to have the rule of law. He says all laws should be prospective and clear. What he means is law

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should deal with things in the present and the future, and that law should be clear. He doesn't
necessarily think that retrospective legislation or laws contradict the rule of law, but he thinks that
the better virtue is for law to deal with the present and the future.
The second value is that law should be relatively stable. The need for stability is so that the
individual is able to make short and long-term decisions. One of the great problems of constant
changing of the law is that individuals have difficulty in being able to plan their lives. Indeed, one of
the attributes of an authoritarian regime or a tyranny is precisely that the law keeps changing, and
therefore, the individual never knows where they are. We need, in order to exercise our autonomy,
to have an idea of the stability of law.
At the same time, the way, his third value, is that the making of particular laws should be guided by
open stable, and clear, general rules. In other words, lawmaking itself must have a high degree of
clarity and must relate to some general rules, some general principles.
Four, we need the independence of the judiciary, and this needs to be guaranteed. What he means
by the independence of judiciary is that we have to be careful in the way in which we appoint
judges, the security of tenure which judges have, and practical things like the fixing of salaries, et
cetera. The question of the appointment of judges is really important in every society, and of
course, there are big differences between jurisdictions. In some jurisdictions, the political
institutions, they play a big role. For instance, the United States as we know, the president
nominates Justices of the Supreme Court, which have then to be ratified by the US Senate. In
Britain, we have a more professionally based promotion system to the judiciary and appointment to
the judiciary, which is run essentially by the judicial system itself. There are disadvantages and
advantages in both systems. In many other countries, there are often mixed systems in which
politicians, judges, and civil servants form commissions in which to give appointments and indeed
promotions to the judiciary. Obviously, it's also important to make sure that judges have a high
degree of security of tenure, so they can't just be removed by political whim.
His fifth value is the principles of natural justice, open and fair hearings, and the absence of bias. In
other words, when you have a court or a tribunal, it needs to operate by the principles of natural
justice, and of course, we have to be very clear on getting rid of the idea of bias.
The sixth value is the court should have the review of the powers that we've just discussed and
should be able to review those principles and to make sure they operate properly.
His seventh value is that the court should be easily accessible, and his eighth, that the discretion of
the crime agencies should not be allowed to pervert the law. These principles, he says, are the
principles of the rule of law. It is these principles which are aimed at undermining the arbitrariness
of law. Now, of course, what did he mean by this? I suppose one quite interesting example in
recent English constitutional history is, for instance, the prorogation case of 2019. The Prime
Minister at the time decided to prorogue parliament. That was to have quite a long session without
parliament being in operation.
There was a suggestion at the time that this was a consequence of the Prime Minister, then Boris
Johnson, not wishing to have large numbers of debates on the Brexit issue. The Prime Minister,
under the royal prerogative, has the right to prorogue parliament. However, Gina Miller and Joanna
Cherry in Scotland both decided that they would challenge whether or not the power had been
used correctly. Had it been used arbitrarily and for the wrong purpose? In her judgment, Lady Hale
at the Supreme Court, as we know, looked through the way in which the unwritten constitutional
principles of Britain operate, and particularly focused upon the powers under the royal prerogative.
As we know, these are powers which are exercised by ministers in the name of the crown and can
cover quite wide areas as we know. Here the courts decided that, in fact, law had been used in an
arbitrary way. The whole idea of judicial review of one sort or another is really also part of this
understanding of the rule of law. It does provide a very important corrective, quite clearly, to the
very big problem of the arbitrariness of law. Raz is not just talking about the arbitrariness of

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government, although as one can see in the case, the prorogation cases would involve the
question of government, but also he's worried about the character of law itself to act arbitrary. Law
itself has built-in problems. The idea of the rule of law is precisely to correct that. In a sense, it is
also precisely the rule of law, which attempts to make sure that the instrument of law is operating
properly.
Raz, for us, offers us, as I said at the beginning, a way of continuing the discussions that HLA Hart
developed in concept of law. Hart, of course, is well known for his idea that law is a union of
primary and secondary rules. There was an ultimate rule of recognition and that law, unlike the
model, he suggests of Austin, which is a gunman type of law, law, in fact, rests upon the notion of
authority.
Here we have Raz attempting to help us see how this process of authority works. Whether it's
authority of the parents over children, the authority of a commanding officer over soldiers, the
authority of the law, the authority of doctors, of accountants, and of others. I suppose if you take
the analogy of accountants, or if you take accountants as an example, rather, one can begin to see
how Raz's notions operate.
If you go to an accountant and ask the accountant to give you the best advice on how you can be
tax efficient in your business and income. Now, the tax, of course, is governed by law. On
authoritative direction, the law lays down the amount of income tax you must pay. It lays down the
bands of capital gains tax. It lays down inheritance tax, sales taxes, and other revenues in general.
The accountant, of course, in giving advice to you on how to be tax efficient, has to take into
account the authority direction of the law. You are bound to abide by this law and by the bounds of
taxation, but the accountant might not come back to you and give you some options as to how it
would be best to organize your income in order to save you paying in tax.
The accountant is giving you advice. Remember that there were those notions that there were
orders, request advice. Here you have the accountant giving you advice. Of course, in order to act
upon that advice, you then need to be quite carefully aware that you have to make sure that advice
strictly fits the tax provisions which are contained within the law. You get advice, but taking that
advice will depend upon how you look at the overall tax system which you have. We have advice,
professional advice about the law, and we have the source of law itself.
Here we have two authorities. We have the authority of the law and the authority of the accountant.
As we can see, whether you take the advice of the accountant is up to you. That is the matter of
deciding whether you think that advice is in your interest. The fact that you have to pay the taxes
within the boundaries created by the tax authorities is something over which you have no choice. Is
it irrational to refuse to accept the advice of the accountant or irrational to say that you don't want
to pay your taxes? It is, of course, entirely up to you how you decide to take the advice from your
accountant. You might think that the advice is helpful. You might think it's something you want to
follow, but you might think it's something you don't want to follow. You might have other reasons
for not doing so. For example, if your accountant says under current English law you could adopt a
non-dom status, that is a non-domicile in Britain for the purposes of tax, which meant that much of
the tax that you'd normally pay in Britain, you wouldn't need to provide a new pay rate in the
country where you're domiciled, that this is something which you can do, but of course, you are not
obliged to do. It would depend presumably on the role that you want to play within British society. If
you were a politician or a campaigner, or an advocate for a particular cause, it might be an unwise
thing to do because it might look that you are trying to avoid paying taxes, which otherwise you
might have to pay, but you haven't got to pay them. Therefore, it wouldn't necessarily be irrational
to say to the accountant, "Actually, I don't want to take your advice on this question, and I think I'd
rather pay a higher rate of tax because there are other things that I need to do as an autonomous
individual within this society."

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That I think is something which very much demonstrates the way in which Raz's hierarchies of
authority, in a sense, operate. That we do look at different authorities in different ways. That it
might be more rational to decide, particularly if you're going to be a politician, or if you're going to
be an advocate for a particular cause, that that is what you do.
During the pandemic, we also notice something else, an extraordinary fact throughout the world.
The COVID-19 pandemic meant that governments across the world, to some extent, exhorted by
the World Health Organization, began to adopt a series of quite draconian restrictions upon life.
Including, of course, being forced, for many people, to remain at home in so-called lockdowns,
unable to go out unless for emergencies or for food, and in some cases, for exercise. In many
countries, you were not allowed to go much more than a kilometer from beyond your home. What's
extraordinary, if you think about it is that the vast majority of people over the world accepted these
restrictions which were implemented overnight. A very good example, if you like, of exclusionary
reasons. Of course, the reason that we, on the whole, cooperated with this because we were faced
with a series of things that we did not know. We did not know because most of us had not studied
what the coronavirus which caused COVID was. We had no idea initially, how it was
communicated, or where its origins were. We were entirely reliant upon health and scientific
advice. We were reliant upon whether we should wear masks or not, whether we should social
distance or not. All things that for most people we had no knowledge of. Therefore, we were quite
prepared to accept the requirements of the government, the obligations that governments laid
down through laws, that we would remain locked down in our homes. We would not go out. When
vaccinations became available, the vast majority of us took the authority of advice of the medical
community and took advantage of the vaccinations.
Now, if you think about it, it's absolutely extraordinary that the world, for over a two-year period,
was prepared to accept this quite different way of living lives. In other words, as an autonomous
individual, we gave up all sorts of control over our lives apparently. Of course, the reason that we
did this was precisely because we were not the experts. It was a very good way of describing, if
you like, Raz's notion of the service conception of authority.
That the combined theoretical authority of the scientific community and the authoritative direction of
the government provided us with the basis of accepting that this was the way in which we would
keep ourselves and our families safe and that eventually, we would be able to defeat the
pandemic. Now, of course, it doesn't mean to say that everybody accepted it. The authoritative
direction which law provided during this period was, of course, reasonably effective. It was a good
guide to behavior. It is very interesting how the vast majority of people accepted this.
Now, of course, some people didn't. A small minority didn't. In the case of the People's Republic of
China, towards the end of, I think nearly three years of a zero-tolerance policy in relationship to
COVID-19, the population began to demonstrate against the restrictions, thinking that they were
now too harsh and unnecessary. It shows that authoritative decision-making, authoritative
directions that practically deliver, apparently deliver a good guide to behavior can sometimes, of
course, wear out and that the population or sections of the population, significant sections of the
population, decide that they are no longer going to be applicable.
To summarize, for Raz, it is not irrational to accept authority because by accepting authority, we, in
fact, are giving ourselves freedom over the rest of our lives to be able to develop our own moral
choices, to plan our careers, to develop creativity, to engage in family life, to believe what religious
principles we wish without interference of the state. The autonomous individual must live within a
society which promotes and enhances the individual. Law as an authoritative direction can
sometimes be arbitrary. As a consequence, we need the rule of law to correct that arbitrariness.
Law itself is not justified or validated by its being rooted in moral principles or moral values, or
indeed any political values. Law is an instrument, and as all instruments, it can be sometimes used
to have negative effects, and thus we have the rule of law as an attempt to correct it. Raz's

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theories and his contribution to positivism are extremely important. I think they help us understand,
particularly in the world in which we live at the present time, the value of individual freedom. For
Raz, as a perfectionist liberal and also a sophisticated positivist, the reason that law should not be
validated through its moral content is because only the individual can determine the morality by
which they want to live. Thank you for your attention.

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