Raz and the Rule of (Authoritative) Law

• Published date: 01 September 2022
• Author: Hillary Nye*
• Date: 01 September 2022
• DOI: http://doi.org/10.1111/raju.12359

© 2022 University of Bologna and John Wiley & Sons Ltd.

Ratio Juris. Vol. 35 No. 3 September 2022 (258–272)

Raz and the Rule of (Authoritative) Law

HILLARY NYE*

Abstract. In this paper I bring together Joseph Raz’s work on authority and his work on the rule

of law, arguing that his commitments about authority entail the conclusion that the rule of law

is integral to the very nature of law. I take no position on whether Raz is right about the nature

of law. Instead, I aim to mount an entirely internal critique of Raz’s work that will show that

if Raz is right about authority, he is committed to a view about the rule of law which he has

explicitly disavowed.

1. Introduction

In this paper I bring together Joseph Raz’s work on authority and his work on the

rule of law, arguing that his commitments about authority entail the conclusion

that the rule of law is integral to the very nature of law. I identify some inconsisten-

cies between his writing on the rule of law and his writing on authority, and argue

that, on the assumption that Raz’s view of authority is correct, he should resolve

these inconsistencies in favor of the view that the rule of law is a necessary element

of law. Raz’s targets in “Authority, Law and Morality” are Ronald Dworkin’s inter-

pretive theory, and inclusive legal positivism (Raz1985, 296). However, the argu-

ment I mount against Raz in this piece is not a response to his argument for the

sources thesis or for exclusive legal positivism. Thorough and interesting defenses

of inclusive positivism have already been made, in many forms, and I do not in-

tend to enter into this debate (see Coleman1998; Waluchow2000). I take no posi-

tion on whether Raz is right about the nature of law, nor, indeed, on whether the

question about the nature of law is even answerable.1 Instead, I aim to mount an

entirely internal critique of Raz’s work that will show that if Raz is right about

authority, he is committed to a view about the rule of law which he has explicitly

disavowed.

1 I have some skepticism about whether questions about the nature of law can be answered at

all, or should instead be eliminated or reformulated. See my brief discussion of eliminativism in

Nye2021. I defend eliminativism in more depth in Nye2022.

* I thank two anonymous reviewers for their very helpful comments. I also wish to thank the partic-

ipants at the 2012 McMaster Graduate Conference for Legal Theory, at McMaster University, where

I first presented this idea. Finally, I thank Elias Jimenez Gonzalez for excellent research assistance.