A Review of Margaret Martin’s Judging Positivism (Oxford: Hart Publishing, 2014),

ISBN 9781849460996. 1 In : Law and Philosophy (forthcoming).

By Veronica Rodriguez-Blanco (University of Surrey, UK).

In her recently published book Judging Positivism, Margaret Martin engages

with the entire corpus of Joseph Raz’s legal philosophy and closely scrutinizes the

development of Raz’s ideas on the nature of law and legal authority, from his early book

Practical Reason and Norms2 to his later work Ethics in the Public Domain3. Martin’s

book has much to offer those interested in understanding Raz’s ideas in legal philosophy

and the possible interconnections among his very prolific writings in legal philosophy.

Martin analyses Raz’s intellectual development under the lens of a central theme.

She aims to show that Raz’s theory of adjudication shifted and that his later conception

of adjudication is in tension with his core idea that the law gives us reasons for actions

that pre-empt or exclude our first-order reasons (the pre-emption thesis) (pp. 26, 40-6,

48-9, 52 and p. 54). In his early work, Raz defended the view that judges have a duty to

follow precedent rules (pp. 20-3).4 However, in his later work, Martin tells us, Raz

adumbrates a model of adjudication where judges resort to moral reasoning to determine

what the law is in particular cases. This model is not merely that in indeterminate cases

judges rely on their discretion and resort to moral principles to determine the content of

the law. Rather, Martin explains, it is a model closer to Dworkin’s principled conception

of adjudication. In the first part of her book, Martin elucidates on this shift and the 1 I am grateful to Wil Waluchow for his comments and suggestions.

2 Raz, J., Practical Reason and Norms (Oxford: Oxford University Press, 1999;

originally published by Hutchinson in 1975).

3 Raz, J., Ethics and the Public Domain (Oxford: Clarendon Press, 1995).

4 Raz, J., see footnote 2, p. 140.

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tension that it generates but provides no detailed explanation of why Raz’s pre-emption

thesis is in tension with the later theory of adjudication. It is only in Chapter Three of the

book that the key idea unfolds. In Chapters Four and Five she develops the arguments

that provide the grounding for the central idea of the book.

The grounding argument relies on Postema’s criticism of Raz’s pre-emption and

sources theses.5 Postema’s argument is essentially this. In determining the content of

law, citizens often need to engage in moral reasoning, something Raz’s two theses

would seem to rule out. Here’s why. Judges sometimes resort to moral arguments in

deciding whether to follow a precedent-based rule. The judge may choose simply to

apply the rule, but then she may not. In the latter case, she might instead modify it or

create a new rule in the light of relevant moral principles. It follows that citizens,

concerned to determine the content of the law as it may be applied to them, will need to

engage in the same moral reasoning as the judges do. However, Raz’s Service

Conception of Authority advances the view that a necessary feature of legal rules is that

they have a pre-emptive or exclusionary force. We may deliberate all we want, Raz

asserts, but in the end we may not act on our deliberations since the content of the legal

rule in paradigmatic cases, i.e. normal cases, is morally justified and therefore excludes

actions based directly on our first order reasons for action.

Martin adopts Postema’s argument. In order to fully understand Martin’s and

Postema’s positions, let us formulate what I will call the ‘Mirror View’. 6

5 Postema, J., “Law’s Autonomy and Public Practical Reason” The Autonomy of

Law (Oxford: Clarendon Press, 1996), pp. 79-118, at pp. 85-86.

6 Martin summarizes Postema’s position as follows: “Postema’s point is that the

behavior of judges impacts on the behavior of citizens” (p. 177). In the view of the

present author, however, this is misleading: Postema is not referring to ‘behaviour’, he is

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MIRROR VIEW (MV) Legal norms have pre-emptive force for citizens only if

judges accord the norms pre-emptive force in their practical reasoning. However,

(according to Postema) the courts do not apply norms in a pre-emptive way, therefore

the citizens will not give the norms any pre-emptive force.

On this interpretation the behaviour of citizens acting on pre-emptive reasons

cannot be ensured if the courts do not take precedent rules as pre-emptive. Raz states:

Assuming that the legitimacy of much of the law depends on its

general acceptance by the population, the question arises

whether anyone can accept the law as binding knowing that

whenever the question relating to it arises before the courts, the

courts may change it. This is the gist of Postema’s version of

my problem, as I understand it.7

Martin discusses Raz’s reformulation of Postema’s position and criticizes Raz for

suggesting that the pre-emption thesis needs to rely only on the beliefs of the

participants in treating the law as pre-emptive. But this is not true, Martin claims, and so

she thinks that Raz’s pre-emption thesis is truly undermined by Postema’s query. This is

because rational citizens will always reason as follows: ‘We cannot accept the law as

pre-empting first order reasons since judges are constantly changing the law according

rather referring to ‘practical reasoning’. 7 Raz, J., “Postema on Law’s Autonomy and Public Practical Reasons: A Critical

Comment,” 4 Legal Theory (1998) 12-20, p.19

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to moral reasoning and consequently do not view themselves as bound by it.

Consequently, we do not believe and do not accept that the law has a pre-emptive force.’

In my view, if Postema’s query is formulated in terms of behaviour and beliefs,

then the argument is an empirical one and does not affect the normative question. This is

part of Raz’s defence.8 However, Postema’s query can be formulated in a much more

interesting way. On Raz’s theory, judges are required to exercise practical reasoning, but

citizens are barred from doing so. A reformulation of the Mirror View, with special

emphasis on practical reasoning, might then be as follows:

Mirror View (Thesis) (Practical Reasoning) (MT-PR): Judges

offer moral and value reasons for actions when they provide a solution

to a legal case. In so doing, they exercise their practical reasoning. The

differentiated application of established rules is grounded on moral and

other value-based reasons for action, and sometimes judges even create

new rules on the basis of these reasons. Their aim in each of these cases

is to justify the coercion of the State and provide citizens with reasons

to comply with the law. Consequently, the content of the law is

essentially grounded on moral (and other value-based) 9 reasons for

actions. Yet, the addressee of the norm can only access reasons for

action when he himself exercises practical reasoning. Hence the

addressee cannot treat legal norms as pre-emptive or exclusionary.

8 Ibid., p. 20.

9 Henceforth I will simply refer to moral reasons, with the understanding that this

encompasses other value-based reasons as well.

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But we are not quite there in articulating the insight behind Postema’s argument.

If the Mirror View is simply put as a problem of both the recognition that the law resorts

to moral arguments, and that the addressee of the norm should or must appeal to such

arguments in deciding whether to be guided by it, then the complete story has yet to be

told. Worse, if the Mirror View is seen as a mere problem of ‘motivation’, then a key

aspect of the argument is lost. The complete story is only told when sufficient emphasis

is given to the practice of practical reasoning. The judge not only makes decisions. She

makes decisions grounded on reasons on which the addressees may or may not act. Of

course it is true that one can recognize moral reasons without endorsing them, i.e. in a

detached manner, or as a mere reconstruction of the reasoning of another person. As Raz

has pointed out, the latter is just a matter of logical reasoning. Not surprisingly, then,

Raz’s response to Postema’s version of the Mirror View is that citizens need not

deliberate directly on the moral reasons on which judges draw in coming to their

decisions. They only have to reconstruct the moral deliberations undertaken by the

judges themselves. And reconstruction requires merely logical reasoning, not moral

reasoning.

When assessing Postema’s objection, Raz tells us, the crucial test is not how

we in fact reason, but how we should reason, what we do when we reason correctly.

The crucial test is that we succeeded in our reasoning. When we engage in moral

reasoning we succeed when our conclusions are morally justified. But in establishing

the ruling set in a previous case we succeed when our reasoning leads to the rule the

court in that case really expressed in its judgment. It may not have been morally

justified and the reasoning we reconstruct, while being evaluative in the content of

considerations it rehearses is, as Postema rightly says, a good reconstructive

argument even though it is a bad evaluative argument. It is a good argument because

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it is a successful reconstructive argument, and the fact that it is a bad evaluative

argument does not matter, as it is not an evaluative argument at all.10

Martin argues that this view commits Raz to an ‘idealized’ conception of what

judges should do, rather than focusing on what they actually do (p. 171). Consequently,

she says, non-evaluative legal reasoning is what judges should do. In other words, the

‘ideal’ of non-evaluative legal reasoning is: “we ought to use only our logical capacities

and not our moral reasoning capacities.” In my view, Martin has misunderstood Raz’s

point. Raz is merely saying that we can reconstruct and be guided by the reasoning of

judges by looking carefully at the premises and conclusions of their reasoning. Some of

their moral premises might be wrong or mistaken, but this does not hinder our logical

capacity to identify them and infer the relevant conclusions. According to Raz, this is

sufficient to advance a correct reconstruction of judges’ decisions, a reconstruction that

is consistent with the law’s peremptory status. We need not ourselves engage in first-

order moral reasoning in order to discern the content of the law – a content that may be

determined by the first-order moral reasoning of judges. Furthermore, this remains true

even if we had, for some reason, erred by trying to discern the law’s content by

ourselves engaging in moral, not constructive, reasoning.

To reiterate, according to Martin, Raz has an idealized conception of non-

evaluative reasoning. And once again, this does not seem true. Raz is simply

establishing that we can distinguish between moral and constructive reasoning, as well

as between accurate and inaccurate descriptions or constructions of a judge’s reasoning.

And we can do the latter in spite of the fact that some of the premises in that reasoning

are moral premises. For example, suppose I ask you to convey to me your reasons for

believing in the moral legitimacy of euthanasia. Upon hearing your reasons, I set out to

reconstruct your views as follows. One of your premises is that the well-being of the 10 Raz, J., see note 7, p. 16

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patient always overrides the principle of the sanctity of life. Another premise is that

there are clear utilitarian measurements of the notion of well-being. Additionally, you

also believe that utilitarian principles exhaust the content of our moral principles. I

conclude from the above, together with the fact that you are terminally ill and have

objective markers demonstrating your lack of well-being, that you find euthanasia

morally justified in your case. I will have succeeded in reconstructing your moral

reasoning if I reach exactly the same conclusions as you did and I have successfully

captured the premises on which you (at least implicitly) have relied in coming to that

conclusion. If, on the other hand, I attribute to you, as your first premise, the claim that

deontological principles, including the sanctity of life principle, always trump competing

utilitarian principles, then I will be mistaken in my reconstruction of your reasoning

since these are not your premises and they lead to a different conclusion than the one

you actually reached.

Despite Martin’s failed attempt to undermine Raz’s response to Postema, it is not

clear Raz’s defence should be allowed to stand unchallenged. After all, in law, all those

who use the law and act under it are not only asked to reconstruct the arguments of the

judges. We need to pay close attention to the structure of practical reasoning and this

may well be the underlying, though undeveloped, theme of Postema’s position. Martin

does not examine closely Postema’s point on practical reasoning and this is probably due

to the fact that she rejects the idea that law provides reasons for actions.

In his critique of Raz’s views on the authority of law, Postema does not fully

exploit the full force of practical reasoning and the way it works. Practical Reasoning is

presented by Postema as an ‘idealized interpretation’ where consensus and our assent is

regulatory of the deliberative process. However, if practical reason is truly practical,

then it aims at action. Raz’s reply to Postema is correct if we accept that we simply need

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to reconstruct the judgment of judges. But I disagree that this is all that is required. A

feeling of ‘strangeness’ remains. What is the cause of this feeling of strangeness? The

problem can be put in this way: courts create X (the norm grounded on moral reasons)

for Y (the addressee) via Z (practical reasoning), but if Y is to accept and act on X as

authoritative, she cannot herself exercise Z (practical reasoning) and therefore her access

to X (the norm grounded on moral reasons) appears limited. The reason is that X (the

norm) is not a mere ‘thing’ like a chair, pencil, or table. ‘X’ involves reasons for action

(elsewhere, emphasising the role of reason in our practical reasoning I have referred to

norms or rules as grounded on ‘reasons in action’).11 Reasons in action guide our action.

The key issue to bear in mind here is that judges’ decisions direct the actions of

the parties involved and are intended to guide citizens’ actions. Similarly, citizens do not

merely try to ‘reconstruct’ or ‘interpret’ what the law is as an idealized or theoretical

enterprise. Rather, they try to understand what the underlying values and goods are that

a particular legal decision is trying to achieve in order to determine how they should act

in being guided by the law, and advance legal arguments that undermine or are

supported by precedent so that the court may properly direct the parties in their action.

Let us return to the previous example of euthanasia in which I am trying to

determine your moral reasoning on euthanasia, not merely to ‘reconstruct’ your

argumentation as a system of ‘beliefs’, i.e., not merely to make intelligible your

arguments, but to determine whether I should assist you in committing suicide. I

consider your views on utilitarianism and well-being and either reject or accept them in

order to justify my own actions. In a similar vein, in court lawyers and citizens try to

make intelligible the arguments of precedent cases and assess the relevant underlying 11 On this point, see my book Law and Authority Under the Guise of the Good

(Oxford: Hart Publishing, 2014).

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moral reasons in order to advocate for a specific path of action. Because the end is

action, the engagement with the judges’ decisions is evaluative all the way through, and

includes both moral and other value-based reasons for action.12 In summary, Martin does

not engage sufficiently with Postema’s interesting thoughts on practical reason. To be

sure, this may be because those thoughts tend to be undeveloped and at some points too

theoretical to constitute a genuine challenge to Raz’s objections. But were they engaged

further, a more interesting and promising line of argument might have ensued.

The contrasting view of Postema, and Martin following in his footsteps, is that

though understanding a court’s decisions requires a reconstruction, this reconstruction is

not possible without moral argumentation. In contrast, I have argued that the problem is

not one of reconstruction, but action. Both Postema and Martin are in need of a more

robust conception of practical reason and reasons in action if they are to succeed in

challenging Raz’s influential views.

The Mirror View does present a problem for Raz, but not for the reasons

advanced by either Martin or Postema. In my recent work13 I have argued that Raz’s pre-

emption thesis is correct if we look at the phenomenology of rule-following from the

theoretical perspective or non-deliberative points of view. This explains the opaqueness

of rules and the mediation role of rules, two key features of rules in Raz’s Service

Conception of Authority. This is, nevertheless, not the entire story if we are to achieve a

sound and complete explanation of how or why we comply with the law. I have argued

that when we look at the phenomenology of the Mirror View from the deliberative point

12 I have provided a full defence of this point in my book, see footnote 11.

13 Rodriguez-Blanco, V., see footnote 11.

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of view, we see that both the citizen and the judge engage with underlying values and

principles when legal rules and directives enter their deliberations.14

In Chapter Four, Martin engages with a detailed analysis of Raz’s two central

theses i.e. the pre-emption and normal justification theses, to explain the nature of

legitimate authority. She argues that the former stems from a positivist methodology

which is grounded on universal and necessary features of a concept. By contrast, the

latter, which is fully developed in The Morality of Freedom,15 involves a morally robust

methodology of law. This morally robust methodology is grounded, she claims, on the

Aristotelian idea of focal meaning whereby features are picked up as significant by the

person who constructs the concept and possesses practical reason. In Chapter Five,

Martin defends the view that Raz’s later theory of adjudication is morally robust. We

have learned from previous chapters that this morally robust theory of adjudication will

be in ineradicable tension with Raz’s pre-emption thesis. In Chapter Six of her book

Martin advances her own positive view on the nature of law, and the central question she

considers is how law contributes to creating and maintaining order. Martin puts forward

a set of puzzling statements on this question without much explanation or careful

scrutiny. She is sceptical about the idea that law provides reasons for action and

proposes instead that law can contribute to creating and maintaining order not because

legal rules are grounded on reasons for action that direct us to values, including moral

values, but rather because we have been socialized and educated in certain ways. It is

through custom, tradition and habit that law exercises its coercive dimension (p. 132).

Therefore, one might conclude, according to Martin, that when we comply with the law,

we neither follow reasons for action nor exercise our practical reasoning capacities. 14 Ibid..

15 Raz, J. , The Morality of Freedom (Oxford: Oxford University Press, 1986).

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Rather we just follow custom, tradition and habit (p. 132). There is no further

explanation of her position on this matter and one can only assume that this simplistic

picture presupposes the opposition of disposition or habit, customs and traditions to

reasons for actions. This is a pity if only because the classical conception of practical

reason engages precisely with how tradition, disposition and certain kinds of education

enhance our rational capacities and our capacity to act according to reasons for action.

Recent work in the philosophy of action, including Raz’s own work on ethics and

action,16 aims to recapture this. In my own work I have advanced the notion of reasons in

action as explained by the idea of ‘powers’. The result is a more complex idea of

‘reasons in action’ that is better able to explain the phenomenology of our social

practices, including law. Once again, it is a pity that Martin fails to engage with recent

scholarship on these matters. In her final chapter Martin provides an exegetical

discussion of all the ramifications of the Postema/Raz debate mentioned earlier. This

detailed discussion provides further light on the central theme of Martin’s book.

Martin provides a thought-provoking discussion of an important author, Raz, and

the merit of her book lies in its attempt to both advance a unitary and coherent account

of Raz’s legal philosophy and to show where this unitary and coherent account might be

doomed to fail.

16 Raz, J., Engaging Reason: On The Theory of Value and Action (Oxford:

Oxford University Press, 2000). On the connection between practical reason and

practices, see MacIntyre, A., After Virtue (Notre Dame: University of Notre Dame Press,

2007). For an effort to extend this understanding to Human Rights, see Retter, M.D.,

“Human Rights and Social Praxis” (ms.).

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