Raz’s Exclusive Positivism and Judges’ Ability to Make Law: Where Are the Limits?
- November 23rd, 2021
- in Uncategorized
By: Natalie Guarino, Georgetown University
All legal positivists believe that law’s existence is a result of social facts, not normative value. Within legal positivism, there is a split between inclusive and exclusive positivists. According to inclusive positivists, although law’s existence does not depend on its merits, law can include moral principles. According to exclusive positivists, it is not possible to incorporate moral principles into law. Joseph Raz, one of the twentieth century’s most influential legal philosophers, is an exclusive positivist who believes that the content of law can be understood solely through social facts, not moral principles.  In effect, he believes that law cannot include dictates like ‘do what is fair’ or ‘do what is just.’ Raz’s argument for exclusive positivism relies on multiple theses and justifications. This post critiques Raz’s assertion that judges are able to make law by relying on moral considerations without incorporating those moral considerations into law.
In his essay “Authority, Law, and Morality,” Raz’s argument for exclusive positivism builds on the view that all legal systems claim to have genuine authority.  From this baseline claim, Raz utilizes several theses that ultimately lead to his claim that law cannot incorporate moral principles. Raz’s argument depends on his conception of a sources thesis, which says that all law is a result of social facts. Essentially, all law can be traced back to its source and the social facts around it (i.e. a law has authority because it was passed by Congress, not because it has some moral component).
Accompanying the sources thesis is Raz’s dependence thesis, which asserts that the law’s or any other authority’s dictates are derived from relevant reasons for action. The dependence thesis means that what the law tells us to do depends at least in part on applicable reasons. An additional thesis Raz articulates is the preemption thesis, which states that the law’s mandates for doing something preempt or replace other reasons for acting.  For example, I might have multiple reasons to not drive my car over 55 miles per hour: it’s dangerous, I might hurt myself or others, or I might damage my car. But once the law decrees that driving over 55 miles per hour is illegal, these other reasons to drive under the speed limit are replaced by the law’s say-so.
Raz uses his dependence thesis and preemption thesis of authority to argue that moral principles cannot be a part of law. If subjects have to engage in moral reasoning to figure out what the law is telling them to do, the theses are violated. Raz uses the example of an arbitrator as a stand-in for the law to demonstrate this point: if two people are in a dispute and come to an arbitrator for a resolution, the arbitrator would never just say ‘do what’s fair.’ If the arbitrator did, the disputing parties would have to engage in their own moral reasoning to figure out the fair outcome and the arbitrator’s decision would not have preempted or depended on other reasons for acting. 
After establishing why moral principles are incompatible with facets of authority that law depends on, Raz argues that judges possess a limited ability to make law. Even though Raz argues that the content of law is solely a matter of social fact, he fully accepts and emphasizes that understanding what the law is and how to apply it can still be very complex. Raz argues that the sources thesis allows for multiple interpretations of what the law is. To demonstrate this, he uses the example of a law that forbids cruel punishment. He notes that every legal system has different rules of interpretation, or guidelines which tell judges how they should interpret certain laws. One system’s rules of interpretation might say that the law dealing with cruel punishment should be understood based on the intention of its original makers. If another system’s rules of interpretation do not make provisions for considering the intentions of original lawmakers, judges are able to decide on their own which punishments should be considered cruel.  In the latter situation, there are instances where judges are able to make law regarding which punishments should be outlawed because they are cruel. For example, if there has never been a court ruling or law made on whether or not drawing and quartering someone is a cruel punishment (to use a colorful example), judges are able to use their own discretion to decide whether this punishment is cruel and therefore illegal. In this instance and in other unsettled areas of law, Raz says that judges are able to make new law.
Raz also acknowledges that defining what is cruel requires judges to use normative thinking based on moral principles. If we are in a legal system where the rules of interpretation allow judges to decide which punishments are cruel, the law is necessarily requiring them to use moral reasoning to come to a decision. Raz has no problem with this situation; according to him, law that allows judges to use moral reasoning to make decisions does not incorporate morality into the law. Raz clearly states that although rules of interpretation may allow judges to make law in unsettled areas, they do not tell judges how to make these decisions.  It is essential to Raz’s exclusive positivist argument that these guidelines around how judges should understand the law are based on facts and not moral principles. For example, in the situation where judges are able to decide which punishments are cruel, the rules of interpretation allow this decision-making to happen because of the fact that the law is vague, but do not tell judges how to define the moral category of cruelty.
From many angles Raz’s argument for exclusive positivism is airtight; however, his account of the lawmaking ability of judges does not adequately explain its limits. I argue that vague laws which allow judges to make law in unsettled areas cannot solely result from social fact, or judges would have unlimited power in these areas. Through the preemption and dependence theses Raz asserts that the content of law cannot be understood using moral principles. He then argues that judges possess a limited lawmaking ability in unsettled areas of law, which creates a problem for his argument. Unless moral principles can be incorporated into law, in situations where judges use moral reasoning to make decisions, they would have no restrictions on the decisions they make.
Expanding on a situation where judges are able to make law will demonstrate the weakness in Raz’s argument. Raz’s example of a law forbidding cruel punishment has a real-life application in the US’s Eighth Amendment, which forbids ‘cruel and unusual punishment.’ The Eighth Amendment clearly allows judges to utilize moral considerations to decide what constitutes ‘cruel and unusual punishment’ in unsettled areas of law. Defining a punishment as cruel or not may be controversial — it is not as easy as saying someone either did or did not rob a grocery store. What I view as cruel may differ from what you or your neighbor views as cruel based on each of our own moral principles. Given these facts, a judge might declare virtually any punishment cruel based on his or her personal moral principles. For example, a very peaceful judge might regard parking tickets as a cruel punishment, but it would be unheard of for a judge to outlaw parking fines as unconstitutional. Obviously, judges do not go around declaring parking tickets a cruel punishment because it would be a mistake to do so and a misapplication of the normative concept ‘cruel.’ That decision would be the wrong moral decision. Although rather silly, this hyperbolic example demonstrates that there are limits to the extent to which judges are able to make law in unsettled areas. For Raz’s argument to fully resolve this tension, it must be able to explain this situation and why it is a mistake for judges to outlaw parking tickets as cruel using social facts alone. Put another way, his argument must show that the law can place a limit on judges’ moral reasoning without incorporating moral principles. 
Raz does not adequately explain how judges are able to use moral considerations to make law without moral principles themselves being incorporated into law. Using the parking ticket example, why is it a mistake for a judge to decree parking tickets as a cruel punishment even though the Eighth Amendment allows them to use moral reasoning to decide which punishments are cruel? We know that according to Raz, judges are able to make law in unsettled areas. There is obviously some mechanism that prevents this sort of situation from cropping up whenever judges use moral considerations to make law. As an exclusive positivist, Raz would say that this mechanism or limiting factor can be understood without appealing to moral principles. According to his argument, there must be some social fact or rule of interpretation that places limits on the type of moral reasoning judges can engage in. But that would be impossible! What rule of interpretation or clause in the Constitution or social fact says what kind of moral reasoning judges can and cannot utilize? None do! There cannot be a social fact that places limits on moral considerations without itself incorporating or espousing a moral principle.
The problem of limiting judges’ lawmaking ability is a weakness in Raz’s argument because it cannot be explained through social facts alone. If his argument could solve this problem (and could talk) it would say ‘look, this social fact stops judges from making mistakes about the type of moral reasoning they use when making law.’ But there are no social facts that can stop judges from making mistakes in their moral reasoning. Remember, this example is a situation where judges are able to make the law, which Raz allows, so fixing the weakness is not as easy as saying that judges can rely on the sources thesis and look at past situations where the Eighth Amendment was employed to figure out what to do. Judges do not outlaw parking tickets because when using moral considerations to define a cruel punishment, they do so ‘correctly.’
Raz would respond to this criticism by saying that limitations to judicial lawmaking power do come from social facts alone. In his essay, he briefly outlines some limits and guidelines for how judges should employ their lawmaking ability. For example, he says, “judges are not allowed to forget that they are not dictators who can fashion the world to their own blueprint of the ideal society.”  Raz also says that judges must be realistic in how they apply moral reasoning when making decisions and to not focus too much on their own personal ideals. These guidelines can be applied to the continuously used example of judges interpreting the Constitution’s cruel and unusual punishment clause. In an ideal world, perhaps we would have no punishment whatsoever and a judge could outlaw any sort of punishment that restricts people’s freedoms, including parking tickets. However, Raz says that judges should make decisions based on what is actually going on in the world. Raz’s use of words like ‘should’ and ‘must’ in this passage are rather jarring given his past emphasis on social facts when discussing law. Supplications to judges to make decisions based on a realistic view of the world is a normative appeal that Raz is not qualified to make based on his positivist credentials.
Prior to this point, Raz is critical of any attempt to dictate how judges should make legal decisions based on moral reasoning. Raz himself rejects R.M. Dworkin’s conception of a duty of professional responsibility, which says judges should make decisions based on the ‘spirit’ or prevailing morality in whichever legal system or society they reside.  The obvious problems with Dworkin’s duty of professional responsibility is that some systems’ political morality is utterly corrupt and opposed to what Raz calls ‘correct morality.’ For example, this duty would require judges in early twentieth century America to extend Jim Crow restrictions on Black Americans. Raz uses the example of judges in South Africa being required to extend apartheid under the guise of “professional responsibility.” Raz’s guidelines for judges applying morality are suspiciously similar to this duty. Although Raz critiques one formulation for how judges should apply moral reasoning to making law, he later supplies his own formulation, which might be called a ‘duty of reality.’ With references to moral reasoning that “takes the world as it is” Raz attempts to impose an extralegal duty on judges that dictates the type of moral reasoning they should use to make legal decisions. 
Raz’s entire exclusive positivist argument is built on the idea that the law is completely reliant on social facts. To pivot at the last minute and say judges’ decision-making should use a certain type of morality is inconsistent. How can Raz tell judges how to make decisions using moral reasoning if the law itself does not? Raz’s attempt at guiding judges’ moral reasoning when making decisions rings hollow. When telling judges to not think of themselves as dictators who can randomly implement their own ideals, Raz still does not explain limits to this ability through social facts.
One further consideration that would negate my criticism entirely is whether Raz would say that there actually is no limit to the type of moral considerations judges may use when making law. Would he argue that although we may hope judges decide which punishments are cruel based on realistic moral considerations, there is nothing to stop them from outlawing punishments as miniscule as detention? I am not sure whether Raz would agree with this argument based on his previously-discussed efforts to restrict judges’ moral decision-making, but it is an additional rebuttal to my critique that should be noted.
When Raz’s belief in judges’ lawmaking ability is combined with his argument for law as a result of social fact, a problem arises. In practice, judges are restricted in the type of moral reasoning they employ to make decisions, which cannot be accounted for using only social facts. I argue that unsettled areas of law that ask judges to use moral considerations to make law can incorporate moral principles because Raz does not give a convincing account of how social facts alone can shape judges’ moral reasoning.
This weakness does not negate exclusive positivism, but it does raise questions about one argument Raz uses for exclusive positivism. Some wiggle room is created about the extent to which moral principles can be included in law in very specific situations, namely when judges make law in unsettled areas by applying moral principles. Raz’s assertion that judges make law is explosive, contradicting the often-touted idea that judges merely discover law. His hesitancy to place substantial limits on how this ability can play out brings up more questions than it answers, but does not shatter his overarching argument for exclusive positivism.
 Audio tape: Lecture on Exclusive Legal Positivism, held by Mark Murphy and Georgetown University (2021) (on file with author).
 JOSEPH RAZ, Authority, Law, and Morality, in ETHICS IN THE PUBLIC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND POLITICS 194-221 (1995).
 Murphy, supra note 1.
 RAZ, supra note 2, at 203.
 MARK MURPHY (2021).