Ethics in the public domain: essays in the morality of law and politics

ETHICS IN THE PUBLIC DOMAIN

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ETHICS IN THE PUBLIC DOMAIN Essays in the Morality of Law and Politics REVISED EDITION

JOSEPH

RAZ

CLARENDON PRESS

·

OXFORD

Oxford University Press, Walton Street, Oxford oxz 6DP Oxford New York Athens Auckland Bangkok Bombay Calcutta Cape Town Dar es Salaam Delhi Florence Hong Kong Istanbul Karachi Kuala Lumpur Madras Madrid Melbourne Mexico City Nairobi Paris Singapore Taipei Tokyo Toronto and associated companies in Berlin Ibadan Oxford is a trade mark of Oxford University Press Published in the United States by Oxford University Press Inc., New York ©joseph Raz 1994 First published 1994 Revised edition published in paperback 1995 Reprinted 1996 All rights reseroed. No pari of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by i:my means, without the prior permission in writing of Oxford University Press. Within the UK, exceptions are allowed in respect of any fair dealing for the putpose of research or private study, or criticism or review, as permitted under the Copyright, Designs and Patents Act, 1988, or in the case of reprographic reproduction in accordance with the terms of the licences issued by the Copyright Licensing Agency. Enquiries concerning reproduction outside these terms and in other countries should be sent to the Rights Depanment, Oxford University Press, at the address above This book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out or otherwise circulated without the publisher's prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser British Library' Cataloguing in Publication Data Data available Library of Congress Cataloging in Publication Data

Raz, joseph.

Ethics in the public domain : essays in the morality of law and politics I joseph Raz. p. em. Includes index. 1. Political ethics. 2. Law and ethics. I. Title. jA79.R39 1994 340'.112-dc20 93- 42442 ISBN 0-19-825837-2 ISBN 0 - 19- 826069 - 5 (Pbk) Printed in Great Britain on acidfree paper. by Biddies Ltd., Guildford and Kings Lynn

PREFACE One is forever searching for understanding, and the further one travels the further off the goal appears. Most of the essays collected in this book were started with the intention to use them to illustrate the application to one or another political or jurisprudential problem of general views about morality and the law which I have argued for elsewhere. More often than not, in the course of writing I realized that the problems I was addressing gave rise to difficulties that I did not anticipate, and that I had not directly addressed before. Luckily (or was it a delusion?) I felt that the general approach I have been pursuing in previous writings was also suitable for dealing with these, to me new, difficulties. The result is-I hope-that the general position I espoused is enriched and strengthened by these new reflections. I called the first part of the book 'The Ethics of Well-Being: Political Implications' to indicate that it follows the approach, endorsed by many writers on moral and political theory and adopted by me in Tbe Morality of Freedom, according to which political morality is concerned primarily with protecting and promoting the well-being of people. The present volume continues (in essays 3- 5) the attempt to defend this approach against some opposing arguments which restrict politics by imposing constraints of so-called 'neutrality among competing conceptions of the good', or which regard rights as constraints on political action whose force derives from considerations which are unrelated to individual well-being. But the em­ phasis of the book is constructive, rather than polemical. The opening essay explores the notion of well-being and the ways in which one's well-being can and cannot be served by others. The paperback reprint of the book includes an additional essay: "Liberating Duties", previously intended for use in a different-now abandoned-project. This complements the essays immediately preceding and following it in exploring the notion of indi­ vidual well-being and the relations that has to rights and especially to duties. These essays prepare the ground for the exploration of two important aspects of well-being: the importance of membership in groups-the role of be­ longing in well-being- and the implication of the active character of well­ being, of the fact that it largely consists in successful activities. Both aspects of well-being have far-reaching political implications. The active aspect of well-being raises vital questions for policies de­ signed to promote people's welfare. If people's well-being can only be achieved through their own activities, what can others do for them? Should people be left to their fate, to prove themselves by overcoming whatever difficulties it throws in their way? If we say that people's lives should be neither devoid of challenges nor full of awesome challenges, are we guided

vi

Preface

by any principled understanding of a

via media,

or merely by a wishy-washy

desire to compromise? Or perhaps by a desire to have it both ways? The issue of belonging is of vital importance to questions of the limits of toleration, and to our attitudes to diversity and pluralism. For me the essays of the first part have another crucial implication, which is never openly addressed in it. As I indicated, they explored some aspects of well-being and of its moral and political implications on the assumption that the promotion and protection of well-being is the central task of polit­ ical action. The more I pursued the implications' of this assumption the more I came to doubt whether well-being can play the central role in ethics sometimes assigned to it. It still seems to me that the promotion of well­ being is the pivotal ethical precept of public action. But ethics in the wider sense cannot be accounted for in terms of concern for well-being alone. These doubts hover in the background in this book. It is, however, a back­ ground which I find full of puzzling issues leading beyond the concerns here discussed. Another theme which underlies much of the discussion, but emerges into the open only in essays 5 and 14, is doubt about the ability of philosophy, or theory in some wider sense, to provide determinate answers to the questions we face in politics. In doubting whether any theory of justice can provide concrete guidance in the solution of all the problems which arise in politics I am not advocating a retreat from rational debate, or from political theory. But I believe that those often run out at the hardest stage, when we are faced with alternative decisions of which all are reasonable and none is supported by decisive or overriding considerations. In many cases substantive reasons and the theory of justice can rule out some wild non-starters, but can reach no further than establishing which of the possible decisions are reasonable. This conclusion raises a wealth of questions which are only lightly touched upon in this volume. The essays of the second part contain some of the elements of an account of the nature of law. Essay 9 sets the scene, by sketching the view that law is best understood against a background of a political society which goes through various processes from public debate and factional pressures to concrete actions and decisions which are represented as authoritatively binding on that society. The law is simply the standards which reached a certain stage of maturation and endorsement in this process. This-or so I argue-is our own self-understanding of the law. Or rather, it is an account of it which fastens on the most significant and illuminating elements in our self-understanding and purges it of incoherences, and other extraneous elements. The other essays in this part articulate some of the consequences of that understanding of the nature of law. Not surprisingly, the central con­ cern is the relation between law and morality. Like other recent writers on

Preface

vii

jurisprudence, I try to steer clear of the ali-or-nothing approach which characterized much of the debate of previous generations. There are inherent connections between legal concepts and moral concepts, and between law and morality. The question is what are they. Perhaps two of the themes examined in the book should be singled out for special mention. First, in essay 10 I offer an argument for the view that the content of the law is capable of being identified by reference to social facts only. The argument is not conclusive, and the issue requires further consideration. But it is to my mind an argument of crucial importance which has been ignored by both supporters and opponents of the thesis about the social identification of the law. The second theme is an attempt to explain the dynamic aspect of law. Those who regard the law as identifiable on the basis of social facts tend to view it as a set of standards for the guidance of conduct. There is no doubt that the law contains such standards, and in a way it can be said to consist of such standards. But the law also 'regulates its own creation', to use Kelsen's expression. This is often understood-as it was by Kelsen himself-to mean that the law endows people and institutions with powers to make new laws. Again, there is no doubt that the law does that. But it does more. It often sets objectives that future legislation should achieve, objectives which regulate not the procedure of law-making but its content. How can an existing law determine the content of a future law? This prob­ lem has been relatively neglected in the jurisprudential writings in English. I try to answer the question in essays 11 and 12 below. The arguments of the book are tentative and incomplete. But I hope that they help clarify the nature of and the reasons for views which have often been misunderstood by supporters and opponents alike. J.R. Balliol College Oxford january 1994

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