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Norms, rationality, and relevance under the “guise of the good”

Yohan Molina

Abstracts

In several works, Veronica Rodríguez-Blanco has proposed an approach to the normativity of legal rules and intentional rule-following in the frame of the “guise of the good” model of intentional action. She argues that, on this approach, Raz’s conception of legal authority implies that legal rules cannot be rational guides for intentional actions. I will argue that Rodríguez-Blanco’s proposal does not succeed in addressing the practical relevance of legal rules. However, I shall argue that a weak version of her criticism of Raz still holds. Thus, this discussion provides a suitable framework from which I will propose a reflection on the normativity of legal rules. This reflection aims to show how legal norms can count as rational guides for intentional agents without being irrelevant in practical reasoning.

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1 Introduction

  • 1 Postema 1987.
  • 2 See Alexander 1990; Clarke 1977; Darwall 2010; Edmundson 1993; Essert 2012; Flathman 1980; Gans 198 (...)
  • 3 Rodríguez-Blanco 2014: ch. 8; Rodríguez-Blanco 2015.
  • 4 Raz 2011: 59–84.

1The core issue in the problem of the “normativity of law” is to explain how legal norms provide reasons capable of influencing the justification of our actions.1 It seems clear that the law plays a normative role in our decision-making and in our actions; in our practical reasoning, we often take the norms of a legal system as considerations counting in favor of doing something. In this sense, we could say that legal norms, although they are products of social facts, have a “practical nature.” However, how do legal rules give us practical reasons able to justify our decisions and actions? In what sense do they have a practical nature? Joseph Raz’s well-known account attempts to explain the normative influence of legal rules in practical reasoning by drawing fundamentally on the concept of an “exclusionary reason.” This approach has received a large number of comments and criticism over the years.2 Especially provoking among them are Veronica Rodríguez-Blanco’s. Rodríguez-Blanco objects that the Razian conception of exclusionary reasons implies that the law cannot serve as a rational guide for intentional actions, that is to say: we cannot intentionally follow legal rules if they are understood as exclusionary reasons.3 Her conception of intentional rule-following and legal normativity draws on the “guise of the good” model of intentional action. As an explicative conception of action, this model basically contends that intentional action is a rational activity guided by the agent’s conception of some value according to reasons. This would be a conception of practical intentionality that Raz himself advocates in his later work for actions in general, although he does not explicitly apply it in analyzing intentional rule-following in the legal case.4 Such an analysis is something that Rodríguez-Blanco tries to do. On Rodríguez-Blanco’s conception, legal rules provide normative reasons for us, and can be intentionally followed, as long as we evaluate their contents as good in the light of our rational appreciation of valuable ends or grounding reasons. This approach would imply that the account of rules as exclusionary reasons deprives the agent of the rational conception of value that is needed to intentionally obey legal rules. In this way, despite the fact that we normally accept that legal rules can be intentionally followed by rational agents, Raz’s conception of exclusionary reasons would involve the peculiar consequence that they cannot be intentionally followed after all.

2Although I accept that a weak version of this criticism is correct, I consider that Rodríguez-Blanco’s own contribution on legal normativity and rule-following fails to give a proper and consistent justification of the practical relevance of legal rules in decision-making. In this way, I will contend that, on the one hand, Raz’s conception has irrational consequences which prevent it from accounting for intentional rule-following according to the guise-of-the-good model, but on the other, Rodríguez-Blanco does not give a proper and consistent account of the practical relevance of legal rules. In the light of that, I will make a case for a view in which the existence of legal rules constitutes facts that, in certain situations, can be understood as fully rational guides for intentional action without being irrelevant in practical reasoning.

3This article is divided into five parts. Firstly, I will briefly reconstruct the central aspects of Raz’s conception of exclusionary reasons within his general project of justifying the idea of legitimate authority. Secondly, I will sketch Rodríguez-Blanco’s conception of the normativity of law and intentional rule-following in order to show how this approach, according to her, implies that legal rules as exclusionary reasons cannot be intentionally followed. In the third part, I will argue that Rodríguez-Blanco’s conception fails to give a proper account of the practical relevance of law, because her answer to the distinctive influence of law in our practical reasoning is at odds with her own approach to intentional rule-following. Nonetheless, I will advocate, in the fourth part, that a weak version of her criticism of Raz still holds, because under certain conditions, and not necessarily as Rodríguez-Blanco suggests, the understanding of rules as exclusionary reasons seems to root out the rational perspective of value that intentional rule-following requires. Considering all of the above, in the final part I will try to show that the guise-of-the-good model of intentional actions can overcome the problem of irrelevance affecting Rodríguez-Blanco’s view, without embracing the irrational implications of Raz’s approach. I will argue that legal rules constitute facts that in some contexts, and under a qualified critical supervision, stand for normative guides that are relevant for practical reasoning without implying irrational consequences affecting intentional rule-following.

2 Practical reasoning and exclusionary reasons

  • 5 Raz 1986: 56.
  • 6 Raz 1986: 42–62.
  • 7 Raz 1990: 193.
  • 8 In his later work, Raz does not mention the “dependent thesis”; rather, he introduces the “independ (...)
  • 9 Raz 1986: 55–56.
  • 10 Raz 1986: 57–59.
  • 11 Raz 1986: 46 (emphasis in the original).
  • 12 According to Mian (2002), Raz faces a problem to explain how an agent can establish that an authori (...)
  • 13 The balance of reasons refers to the ponderation of the weight or strength of the relevant reasons (...)
  • 14 A significant subject reviewed below is how those excluded or displaced reasons can be determined.

4Joseph Raz calls his conception of authority the “service conception,” because the fundamental role and primary normal function of legitimate authority is to serve relevant reasons of the governed.5 Broadly speaking, the benefit of authority on this conception lies in the idea that we can better conform with our relevant reasons by obeying authority than by acting on a direct assessment of such reasons. There are three closely connected theses that shape Raz’s general view.6 First, the “dependence thesis” states that authoritative directives should be based on “dependent reasons” – later called “underlying reasons”7 – that already apply to the agent subjected to authority and are relevant to his action in the circumstances covered by them. According to this thesis, authoritative directives in general should manifest or reflect the exigencies of relevant reasons that the agent subject to the authority already has and that apply to the situation governed by the directive. Second, the “normal justification thesis” claims that the authoritative relation stands to the extent that the addressee has a better chance to conform with dependent or underlying reasons when he follows the directive than when he acts guided directly by his own judgment on them.8 These two theses emphasize the role of legitimate authority as a service for the governed.9 Finally, the “preemptive thesis,” which would be followed from the previous ones,10 states that an authority’s directive constitutes a reason for performing an action “which is not to be added to all other relevant reasons when assessing what to do, but should exclude and take the place of some of them.”11 In this view, when a subject is unable to establish, in his own judgment, what is required by his underlying reasons in a better way than authority,12 then it is rationally justified to follow the authoritative directive and not to act based on one’s own judgment on those underlying reasons on which authority is better positioned to decide. In this sense, the directive is not an ordinary reason that is to be added to all the other underlying reasons in practical weighting, but one that would reflect the action that the balance of some of them requires13 and excludes our judgment on those specific reasons as direct guides of action.14

  • 15 In the Morality of Freedom, Raz speaks about “preemptive reason,” characterized as “a reason which (...)
  • 16 Raz 1990: 36.
  • 17 Raz 1979: 17; Raz 1990: 39.
  • 18 Raz 1979: 18.

5In this frame, the constitution of authoritative commands as practical reasons relies distinctively on the concept of an “exclusionary reason.”15 This depends on the important distinction between first- and second-order reasons.16 A “first-order” reason is a reason in favor of or against the performance of an action. At this level, conflicts between reasons are decided by assessing their relative weight in the balance of reasons. On the contrary, a “second-order” reason is a reason either to act or not for a first-order reason. A second-order reason to act for a first-order reason is what Raz calls a “positive second-order” reason, while a second-order reason to not act for a first-order reason is what he terms a “negative second-order” reason, or “exclusionary reason.”17 Thus, an exclusionary reason is a reason to not act on the basis of first-order reasons. On this ground, Raz introduces the concept of a “protected reason,” which consists at once of a first-order reason to Φ, and a second-order exclusionary reason to not act on the basis of first-order reasons against Φ.18 Accordingly, a protected reason is a reason in favor of doing something that defeats first-order reasons thanks to its exclusionary character and not by its relative weight. In this way, authoritative rules are essentially protected reasons that, while excluding our action based on some conflicting first-order reasons, are able to stand for an indirect path for maximizing conformity with underlying reasons.

  • 19 Raz 1986: 67–69; Raz 1990: 63–64, 195.
  • 20 Raz 1986: 30–31, 49–50, 56, 73; Raz 1990: 64, 195.

6According to Raz, there are some circumstances where it is justified to resort to the exclusionary service of authorities. He presents at least two kinds of decision-making circumstances through “the argument from expertise”19 and “the argument about coordination.”20 The argument from expertise simply remarks that it could be justified to follow the authoritative directives of an expert in cases of uncertainty or lack of information in the decision-making process. Uncertainty could be either the result of mere ignorance or the product of a choice to avoid irrational decision-making costs implied in a full deliberation to access relevant information. The argument about coordination, on the other hand, establishes that following authoritative directives could be the best way to achieve social coordination when attempts to act according to individual judgment on the merits of the case likely turns out to be ineffective. In both cases, it would be justified to treat authoritative directives at once as both reasons to do something and exclusionary reasons displacing (some) first-order considerations. Thus, authorities would perform a mediating role between agents and the reasons they already have by improving conformity with these.

7In the next section I will sketch Rodríguez-Blanco’s criticism of this idea of an exclusionary reason. This criticism is based on a conception of the normativity of law and intentional rule-following relying on the guise-of-the-good model.

3 Authoritative rules and the “guise of the good”

  • 21 Cf. Davidson 1963. Davidson considered that the causal basis of intentional actions is what he call (...)
  • 22 Rodríguez-Blanco 2014: 25.
  • 23 Rodríguez-Blanco 2014: 25.
  • 24 Anscombe 1963.
  • 25 Rodríguez-Blanco 2014: 62.
  • 26 Rodríguez-Blanco 2014: 28, 47, 61.

8For Rodríguez-Blanco, the “standard” view of intentional action – according to which action is fundamentally a causal product of mental states, i.e., desires and beliefs21 – provides an excessively simplified perspective, unable to grasp relevant features of practical intentionality. She calls the standard approach the “two-component model,”22 because it divides action into two main ingredients: mental states and behaviors. The standard model aims to explain intentional action by establishing causal relations between these two constitutive poles from the perspective of an external observer, from the third-person point of view.23 In this way, the intentional action of, for example, making a sandwich, could be explained by causally connecting that behavior to both the desire to eat something (a pro-attitude) and the belief that making a sandwich is the suitable conduct to satisfy it. Nonetheless, in Rodríguez-Blanco’s conception, which follows Anscombe,24 the standard model overlooks a fundamental point in explaining the structural nature of intentional actions: an intentional action is a complex unity composed of progressive stages whose production is controlled along its complete performance by the agent. Under this consideration, intentional action is not conceived as an external bodily movement plus psychological states,25 but as a continuous process toward an end carried out by the agent. In consequence, this idea of intentional action privileges the first-person or deliberative point of view, because it is based on the practical perspective of the subject who decides and acts. The agent intentionally acts due to the fact that he is guided toward an end that he considers valuable, an end enabling him both to identify relevant actions and to control the production of their successive steps. In this way, valuable ends or “grounding reasons as good-making characteristics” serve as guides for the agent in the practical articulation of all the partial stages of the complex performance of his action. Reasons as good-making characteristics are convergent points allowing the intelligible unity of intentional action.26

  • 27 Rodríguez-Blanco 2014: 40. For an argument in favor of intentional actions made for no reason, see (...)
  • 28 The standard view has to face the well-known objection focused on its incapacity to explain deviant (...)
  • 29 Rodríguez-Blanco 2014: 45–47. On this, see Anscombe 1963: ch. 6.

9From this standpoint, intentional action is equivalent to action done for the conception of a reason,27 and the first-person point of view would be the suitable perspective for approaching intentional actions, because it provides a better explanation of their complex structure. Furthermore, ideas closely connected to practical intentionality, such as self-control and self-guiding, would be better vindicated than under the “two-component model.”28 In the same vein, since the background of reasons why pursuing an end becomes valuable is key to understanding the complex performing of intentional action, then asking the agent why he acts in a certain manner is then the sound way to know the reason as a good-making characteristic making the unitary articulation of his action intelligible. Thus, the why-question is a methodological tool enabling us to reconstruct the complex constitution of intentional actions as a unitary whole.29

  • 30 Rodríguez-Blanco 2014: 30.
  • 31 Rodríguez-Blanco 2014: ch. 2.

10This consideration of actions based on reasons as good-making characteristics, reasons regarded by the agent as valuable ends that could be made explicit by the why-question methodology, is the core tenet of the guise-of-the-good model of intentional action.30 Rodríguez-Blanco tries to approach the normative nature of authoritative legal rules and the possibility of intentional rule-following by resorting to precisely this model. For Rodríguez-Blanco, legal rules have to be based on reasons as good-making characteristics if they aim to have some normative role in practical reasoning able to support and guide intentional actions. As external demands, legal rules can have the kind of normative influence that involves intentional action if the agent conceives of the value of their content as a result of his evaluation of grounding reasons.31 In this fashion, her explanation of the normative nature of law in terms of grounding reasons as good-making characteristics is closely connected with the explanation of intentional rule-following. We can intentionally follow a legal rule if we act based on our assessment of the suitability of its content in the light of grounding reasons.

  • 32 Rodríguez-Blanco 2014: 140.
  • 33 That would imply the highly problematic position that legal rules in themselves, independently of t (...)
  • 34 For a similar example, see Rodriguez-Blanco 2014: 142.

11Likewise, the why-question methodology allows us to extract the grounding reasons of legal norms, and thereby the rational end which normatively engages agents in following the rule in an intentional way. In intentional rule-following, rules cannot be the primary reasons for action; these primary reasons are those grounding the value of following the rule’s content.32 In this way, the relevant force of legal rules is dependent on their grounding reasons as good-making characteristics; the reason-given character of the law is related to the conception of values beyond it. Take the case of someone following the rule “Separate your garbage for recycling.” If we ask him why he does that, he could say, “Because the law demands it.” But from Rodríguez-Blanco’s point of view, the rule itself cannot be a sufficient answer in explaining intentional actions.33 Instead, we could keep asking why he follows the rule, and now he can answer, “Because recycling is important in taking care of the environment.” Obviously, we can ask again why he should do that, and finally he could say, “Because a clean environment is essential to preserving human life, and human life is valuable in itself.” The value of life would be the final grounding reason explaining his intentional action of separating his garbage for recycling.34 Although Rodríguez-Blanco does not make this point clear, grounding reasons as good-making characteristics should be based on some agent’s conception of ultimate values, because they are the only reasons that seem to stop the iterative question “Why?” by not serving deeper ends. In this regard, I think that there is wide agreement that authoritative legal rules – regardless of their contents – are not themselves ultimate in that sense.

  • 35 Rodríguez-Blanco 2014: 158.
  • 36 Rodríguez-Blanco 2014: 140, 158–159.
  • 37 It is noteworthy that Raz (1990: 179–182) distinguishes between conforming with a reason and comply (...)
  • 38 Rodríguez-Blanco 2014: 155 (emphasis in the original).
  • 39 Rodríguez-Blanco 2014: 157.
  • 40 Rodríguez-Blanco 2014: 156 (emphasis in the original).

12Keeping this in mind, it is possible to understand Rodríguez-Blanco’s critique against the idea of exclusionary reasons. Rodríguez-Blanco thinks that, to the extent that rules cannot themselves be ultimate reasons guiding intentional actions, they can be intentionally followed only if the agent acts on the assessment of their contents according to further grounding reasons. However, the understanding of legal rules as exclusionary reasons would leave the evaluation of grounding reasons outside the motivation of actions. Exclusionary reasons would disable the action based on the assessment of the value of the content of the rule according to grounding reasons – which, in Raz’s terminology, would amount to underlying reasons35 – and thus the intentional adherence to the rule.36 Consequently, authoritative legal rules as exclusionary reasons could not be practical binding guides allowing agents to act (intentionally) under the conception of the good that the action involves.37 Raz’s concept of exclusionary reasons would involve that “[w]e cannot characterise our actions as intentional.”38 “From a textual analysis of Raz’s works we can infer that [...] we do not follow legal rules intentionally.”39 “Therefore, contra Raz, I argue that, in the normal cases, we follow legal rules intentionally.”40

13However, it remains to be seen whether Rodríguez-Blanco’s own account of the practical nature of authoritative legal rules is suitable, and whether her criticism of exclusionary reasons is pertinent. In the next two sections, I will focus on both points.

4 On the practical relevance of law: A problem for Rodríguez-Blanco

  • 41 Rodríguez-Blanco 2014: 142.
  • 42 Rodríguez-Blanco 2014: 160 (emphasis added).

14It goes without saying that Rodríguez-Blanco’s proposal raises a significant number of issues in legal philosophy, the philosophy of action, political philosophy, and moral philosophy. Here, I would like to focus on the question of the practical relevance of law. If it is true that intentionally following legal rules completely relies on the evaluation we make of their contents according to the requirements of grounding reasons, then it is unclear in which way rules could have a distinctive practical effect in rational rule-following. Rules are relevant in decision-making when they do not entirely depend on a judgment about its content in the light of grounding or underlying reasons to be rationally obeyed. If the rule has to exactly coincide with our judgment on the exigencies of grounding reasons to be rationally followed, it makes no real difference in rule-guided choice; it will be redundant as to the agent’s rational decision. The rational agent would perform the prescribed action even if the rule did not exist. Hence, and even though it may sound striking, the guise-of-the-good model of intentional action would imply that intentional rule-following is possible only if legal rules are superfluous. However, Rodríguez-Blanco realizes this problem and tries to overcome it.41 She addresses the practical relevance of authoritative legal rules by considering that it is possible to act according to a presumption of the goodness of the rule or directive “without avowing the grounding reasons of the legal rules.”42 In other words, it is possible to rationally follow legal rules without avowing or endorsing grounding reasons as evaluative parameters for judging the identification of their requirements with the contents of legal rules.

  • 43 “To coordinate our different activities and pursue the good, we act on the presumption of the goodn (...)
  • 44 As set out in L.L. Fuller 1969: 38–39.

15Her solution, though somewhat obscure, is that we could follow authoritative legal rules as if they were a good sort of thing, thanks to: (1) our confidence in the correctness of an authority’s claims, and (2) our recognition of an authority complying with most, or all, of the eight desiderata of the rule of law. Authorities’ claims would be pieces of “insufficient evidences” which enable us to create a presumption about the goodness of the rule, without judging its content pursuant to grounding reasons as good-making characteristics. In the first case, what seems to be the crucial point of Rodríguez-Blanco’s argument is that we could presume the goodness of the rule if we can rely on the capacity of an authority to establish prescriptions useful to achieving some valuable end, due to the fact that acting fully guided by our own judgment on grounding reasons would turn out to be unfavorable in certain situations. Authorities, for example, could be useful both in contexts of uncertainty and in contexts of coordination.43 In the second case, when authorities comply with most of the eight desiderata of the rule of law,44 they would be able to create a presumption about the goodness of the authoritative rule because they show the sound procedure involved in good lawmaking and judging. This last aspect is closely connected with the first consideration, because good lawmaking and judging would be relevant to achieving some valuable goals – e.g., social coordination.

16However, some doubt might be had about the presumption of the goodness of authoritative legal rules. If we can act under a presumption of the goodness of a rule without avowing or endorsing grounding reasons as evaluative parameters to judge its content, how could it be possible to intentionally follow the rule under the guise-of-the-good model advocated by Rodríguez-Blanco? As we have seen, for Rodríguez-Blanco we can intentionally follow a legal rule if we avow or endorse grounding reasons as evaluative parameters in judging legal contents. Yet we are now told that we are able to act guided only by a presumption of the goodness of the rule without avowing grounding reasons as normative guides in assessing its content, from which it follows, in Rodriguez-Blanco’s own terms, that the rule loses its normative power and cannot be intentionally obeyed.

  • 45 Adam Perry’s (2015) account of the acceptance of rules sets something similar in considering that a (...)

17Given the previous problem, an alternative option for Rodríguez-Blanco is to modify her own approach to intentional rule-following. In accordance with this alternative, intentional rule-following is also plausible when we do not act based on our own judgment about the value of the content of the rule. What matters for intentional action is the consideration of the goodness of the rule to achieve further ends, and for this it is not necessary to evaluate its content according to grounding reasons. The rule can be conceived as something good to follow even when we do not achieve that axiological conception through the evaluative identification of its content with the exigencies of grounding reasons.45 Since we would not be able, in certain situations, to satisfy grounding reasons if we acted based on our own evaluative judgment about them, it would be possible to trust that the rule is good when authority has the relevant qualities to lead us to achieve such valuable ends. The record and success of the authority enacting norms, its epistemic credentials, the respect it enjoys in the community, its influence over other people, and other considerations of this sort (not directly related with the contents of rules) can support our considering or presuming its norms as good in complying with grounding reasons even when we are not able to know what such reasons exactly require. In other words, we could intentionally act by trying to conform with grounding reasons through obedience to the rule without being based on the direct identification of the action they require. Nonetheless, it is interesting to emphasize that if this modified approach is possible, then Rodríguez-Blanco’s criticism of Raz’s conception seems to fail. Raz could argue that, mutatis mutandis, an agent can intentionally obey rules as exclusionary reasons. Thanks to considerations not directly connected with the content of the rule, the agent can conceive that authority has relevant qualities to indirectly lead him to satisfy valuable underlying reasons through its exclusionary commands – in the relevant contexts where he acknowledges he is not in the best position to decide. In this regard, Raz could say that an agent following authoritative rules as exclusionary reasons could see them as good in indirectly complying with underlying reasons, so it does not matter if he did not act based on his direct judgment on the specific actions that excluded reasons require.

18In this way, Rodríguez-Blanco’s account seems to be caught on the horns of the following dilemma: either she tackles the problem of the practical relevance of legal rules dispensing with the endorsement of grounding reasons as normative guides for identifying legal contents (her solution), but then legal rules cannot be intentionally obeyed on her own approach of intentional rule-following, or she modifies her original approach to intentional rule-following and accepts that it is not needed that intentional action relies on the judgment on legal contents according to grounding reasons, but then rules as exclusionary reasons can be intentionally followed and her criticism of Raz does not hold.

19I contend that Rodríguez-Blanco’s modified approach to intentional rule-following is right. The sources of the conception of goodness concerning intentional rule-following do not have to stem only from an assessment of the suitability of the content of the rule to adhere to grounding or underlying reasons. On the other hand, I agree that it is conceptually possible to intentionally follow rules under the description of exclusionary reasons. However, I also consider that there are some circumstances where rules understood as exclusionary reasons dispense with the rational conception of value needed to perform intentional actions; I refer to situations where the agent knows that the content of the rule is wrong in terms of the reasons the rule aims to exclude. The issue is that Raz’s conception is not successful in addressing cases of critical rejection of the rule based on its content in the light of excluded reasons. In other words, it does not assimilate cases where the agent conceives the rule as valueless concerning the reasons under the scope of the authority. Let us consider this point more closely and how it affects intentional rule-following.

5 Exclusionary reasons and the “guise of the good”

  • 46 Raz 1990: 40, 46, 79.

20As we saw before, an exclusionary reason is a second-order reason which excludes acting based on our judgment on conflicting first-order reasons. According to Raz, a second-order reason always prevails when it conflicts with the first-order reasons it aims to exclude, in virtue of its higher-order level.46 This implies that if we accept that an authoritative rule is not only a first-order reason to do something, but also an exclusionary reason to not act on our judgment on the balance of excluded underlying reasons, then our judgment on the unsuitability of the content of the rule regarding such excluded underlying reasons should always be excluded from the motivation of our actions. To put it differently, an agent cannot base his action of not following the rule on the direct assessment of its content in the light of excluded underlying reasons, for exclusionary reasons prevent our judgment on excluded reasons from having any influence in rational motivation.

  • 47 Raz 1990: 79–80, 187–188.
  • 48 Raz 1990: 79 (emphasis added).
  • 49 Raz 1990: 46.
  • 50 This is fully coherent with Raz’s formulation of the preemptive thesis quoted above, since the rule (...)
  • 51 Raz 1990: 79.
  • 52 Raz 1990: 187.
  • 53 Raz 1990: 187.

21It is true that, in some places, Raz briefly points out that obedience to a norm can be affected on the basis of first-order reasons: there could be both exceptions to the norm and cases outside its scope.47 First of all, Raz contends that a norm regarded as an exclusionary reason “does not have to compete with most of the other reasons which are likely to apply to situations governed by the norm.”48 The set of reasons excluded by an exclusionary reason stands for its scope.49 Therefore, according to Raz, the scope of exclusion of the norm over first-order reasons is not absolute,50 and there is a minority of cases where the norm could not be decisive: “There may be other conflictive reasons not excluded by the norm. [...] The complicating factors apply only in a minority of cases.”51 In this sense, a case falls under an exception to the rule when the reasons excluded by the rule apply to the case, but there are conflicting reasons outside its scope that also apply to it and are considered as prevailing over the excluded reasons, and so over the rule. Take the example of the rule “Never deceive.” This rule can reflect and exclude reasons under its scope related to honesty and moral integrity. However, it might happen that there is another more important reason outside the scope than those reasons within it, as when a human life is in danger, which justifies the exception of not following the rule in some cases.52 On the other hand, a case falls outside the scope of the rule when the reasons excluded by the rule do not apply to the case governed by it.53 This could be called a case of nonapplication. Imagine that a rule prohibiting vehicles from accessing the park reflects and excludes reasons related to the road safety of visitors, but park staff use a vehicle to take the garbage out when the park is closed because there are no visitors. In this case, the reasons under the scope of the rule do not apply to the use of the vehicle, as there is no possibility of hurting visitors when there are none in the park.

  • 54 Raz says: “In a case to which a reason incompatible with the norm, but not excluded by it, applies (...)
  • 55 Perhaps what I call cases of nonapplication can be understood under what Raz calls “cancelling cond (...)

22In both examples, our judgment on first-order reasons justifies the practical refusal to follow the rule. When it comes to exceptions, the judgment on reasons outside the scope of the rule supports not following it. Here there is a comparison between first-order reasons: the weight of the nonexcluded first-order reason prevails over the weight of the norm as a first-order reason reflecting some other reasons.54 When it comes to cases of nonapplication, the judgment on the reasons under the scope of the rule supports that it is not needed to follow the rule in order to comply with them. The rule as a first-order reason is not overridden, but it loses its normative force in such a specific case.55 However, these brief Razian considerations cannot make out the rational refusal to follow the rule based on the reasons the rule excludes.

  • 56 On this, see Gans 1986: 385 and Gur 2007: 198.
  • 57 Like a Trojan horse, the ponderation of the alleged excluded reason gets surreptitiously folded int (...)

23First of all, Raz does not make clear how to determine the reasons a rule excludes. One available criterion is that the range of excluded reasons is determined by a weight comparison among all the relevant reasons concerned in the situations covered by the rule.56 By this criterion, a conflicting reason (a reason against the rule) can be considered as excluded, and thus under the scope of the rule, if it is assessed by the addressee as not strong enough to justify disobedience. On the contrary, a conflicting reason can be considered out of scope when it is assessed as stronger than the reasons supporting the rule, and thus as able to justify disobedience. The problem with this criterion is that the alleged reason under the scope of the rule would not, paradoxically, be excluded. What defines an excluded reason is that it cannot be part of the balancing of reasons determining how to act, but according to the criterion, the status of the excluded reason would depend precisely on the judgment on its strength or on its weight against the rule. In other words, the reason is excluded from the motivation of actions when it is pondered by the addressee as unable to justify disobedience, but that means that the actions that are not supposed to be based on the ponderation of the excluded reason ultimately rely on such a ponderation.57 In the “rational pedigree” of the motivation of the action will appear the assessment of the reason at stake. Hence, the identifying criterion for the “excluded” reasons stands in opposition to their excluded nature.

  • 58 Raz 2009: 144.
  • 59 Raz (1990: 189) says that “legitimate authority has the right to issue directives within the sphere (...)

24However, it is fair to say that Raz, in his later work, says that authoritative rules “exclude reliance on conflicting reasons, not all conflicting reasons, but those that the law-maker was meant to consider before issuing the directive.”58 But this is a vague criterion that can be charitably read in the following way. The reasons authority was meant to consider are reasons which apply to the addressee before the directive and which, on the available evidence, are related to the subject, area, or domain over which the authority was entitled to decide and which represents its jurisdiction.59 This reading leaves at least three kinds of reasons outside the scope of the rule: (1) those which are not related to the domain the authority covers; (2) the conflicting reasons related to the authority’s domain based on evidence not available until the moment of the directive; (3) those which, although related to the authority’s domain and covered by the rule, arise in future exceptional situations which the authority was not able to consider. For example, the labor authority which requires industrial employees to wear safety helmets can consider that this rule resists possible conflicting reasons related to the matters it was empowered to decide on: health and safety. Thus, conflicting reasons ultimately based on considerations of health and safety fall within the scope of the rule as excluded reasons, and cannot be considered by the governed as motives of his action. Of course, the same authority can be entitled to decide on a wide range of different topics and to pronounce on the respective balance. The wider the range, the greater the number of excluded reasons.

  • 60 This would be the case of the aforementioned rule “Never deceive”: the authority was empowered to e (...)

25By contrast, reasons outside the scope of the rule would be: (1) conflicting reasons existing before or after the directive is issued, which are relevant to the case covered by the rule but are not related to the subject the authority was empowered to decide on (in this case, reasons not related to health and safety);60 (2) conflicting reasons which existed before the directive and are related to the authority’s jurisdiction, but which at the time of issuance were unknown due to unavailable reasonable evidence (for example, it may be discovered, after the directive is issued, that the helmet is made of a potent carcinogenic material); or (3) conflicting reasons that are related to the authoritative jurisdiction but come into existence after the rule was issued, and were not foreseen by the authority (for example, that the helmet causes a new employee a rare but severe allergy).

26Yet, taking for granted that the criterion is fully coherent with the idea of an exclusionary reason, the problem with the rational refusal to follow the rule remains. If I am sure that the authority is wrong about the balance of reasons that, on the evidence available, it was meant to consider before issuing the directive, I cannot refuse to follow the rule based on my judgment on such reasons. Imagine that the labor authority, before issuing the rule, knew that the helmet is carcinogenic, but that the authority requires the helmet anyway because of a wrong ponderation. If an employee is sure that the helmet seriously damages his health and safety, it seems natural to think that he can refuse to follow the order requiring the helmet to be worn. However, on the conception of exclusionary reasons, this could not be the case: that the helmet is carcinogenic is an excluded reason within the authority’s jurisdiction (health and safety); therefore, it cannot be a reason on which the action is based. In cases where I do not have reasons to distrust the authority’s capacity, but I am able to know that the content of the rule is not favored by the balance of the excluded reasons, I have to obey the rule anyway because the protected nature of the rule favors obedience. My judgment on conflicting excluded reasons should be rooted out from the rational motivation of my action. As a result of these considerations, Raz’s proposal makes the rational rejection of the rule, in the light of the balance of excluded reasons, unfounded. This forces the conclusion that when we are sure of the wrongness of the rule according to the balance of excluded reasons, we equally have to obey the rule in a blind and irrational way.

27The previous criticism implies that following rules as exclusionary reasons is not fully compatible with intentional actions under the guise-of-the-good conception. We can accept that in relevant contexts – like those of coordination or uncertainty – it could be rational to follow an authority’s commands as an indirect way to comply with certain ends, but this intentional action could not be completely detached from the critical assessment on the action ordered in the light of “excluded” reasons. The intentional agent does not act according to the rule if he considers that its content does not have any value in light of the (binding) reasons it aims to serve. Nonetheless, according to Raz’s conception, our action cannot rely on our appreciation of the balance of excluded reasons but must rely on the rule as a protected reason. Raz’s conception has irrational consequences at odds with intentional rule-following, since it requires the agent to take the norm as a reason to act and to rule out actions against the norm based on excluded reasons, even when the agent is sure that the ordered action is not good regarding the excluded reasons the norm serves. Strictly speaking, this is not the same as Rodríguez-Blanco’s criticism of Raz, but a weak version of it. According to Rodríguez-Blanco, on the guise-of-the-good model, legal rules as exclusionary reasons cannot be intentionally followed at all. I restrict myself to the most moderate claim that when the agent is sure of the valueless character of the content of the rule in view of the reasons the rule aims to exclude, then there is no conception of value needed to perform the intentional action of obeying the exclusionary command. In other words, the understanding of rules under the description of exclusionary reasons is not compatible with intentional rule-following when the agent conceives of the lack of value of the prescribed action regarding the excluded reasons.

28In summary, Rodríguez-Blanco’s solution for explaining the rational relevance of law conflicts with her own approach to intentional rule-following. Moreover, we have considered that Raz’s conception of exclusionary reasons is not fully compatible with the guise-of-the-good model of intentional action, since the agent should act according to the rule even when he knows that it is valueless regarding the balance of reasons excluded by it. We thus have the following picture. On the one hand, Rodríguez-Blanco’s original approach to legal normativity and intentional rule-following is unable to explain the practical relevance of law. On the other hand, Raz’s conception of exclusionary reasons involves irrational consequences able to prevent legal rules from being intentionally followed. The key question, then, is: is it possible to have an approach to intentional rule-following that addresses the practical relevance of legal rules without implying irrational consequences? I believe that what I called Rodríguez-Blanco’s modified approach to intentional rule-following, which we saw can face the problem of irrelevance by accepting that the rule can be seen as good to follow even when the agent does not identify the legal content with the exigencies of grounding reasons, is able to overcome that challenge because it is fully compatible with the rational refusal to follow rules.

6 Critical control and rules

  • 61 I consider that this is the best ontological approach to normative reasons against conceptions advo (...)
  • 62 Raz (2009: 148) says that “[t]he service conception makes the legitimacy of authorities turn primar (...)

29I think it is possible to consider that legal rules are valuable tools with which to achieve worthy ends, without sacrificing the possibility that they are rationally relevant in the practical reasoning of intentional agents. But before moving forward, I would like to make two things clear. Firstly, I will understand that a reason is a fact that counts in favor of believing or doing something.61 For example, the fact that a cup of wine is poisoned is a fact which counts in favor of (i.e., is a reason for) not drinking out of it. Secondly, I will understand that legal rules constitute facts associated with a type of normative force which is not intrinsic but derived, since their binding power, as Raz and Rodríguez-Blanco accept,62 depends on the suitability of rules to achieve ends different from the rule itself. The issue, then, is how to grant authoritative legal rules a relevant practical role without implying irrational consequences, since we acknowledge in advance that they in themselves have no ultimate practical force (unlike moral or prudential final ends, which would have such force).

  • 63 Regan 1989: 1004–1012.
  • 64 Regan 1989: 1004.
  • 65 Regan 1989: 1012.
  • 66 It is important to make clear that the distinction between opaqueness and transparency in the case (...)
  • 67 Regan 1989: 1011.

30In order to avoid the Scylla of irrationality and the Charybdis of irrelevance in intentional rule-following, it could be useful to start by considering the Razian decision-making contexts where authority could play a relevant practical role, without bringing the problematic idea of an “exclusionary reason” into the picture; that is to say, without accepting negative second-order reasons, and thus without accepting that there are reasons excluded in advance from the rational motivation of actions. To begin with, we have circumstances of uncertainty or lack of information. In these cases, we can consider the instrumental nature of the concept of an indicator rule.63 According to Donald Regan, indicator rules are guides to action adopted to deal with cases where we are not in a suitable position to decide on our own on a specific subject due to lack of information, some high costs associated with the decision-making process, and the like.64 These guides are based on considerations that allow us to rely on the rule’s success in leading us to act according to the balance of reasons, when we do not know whether its content matches with them in the particular case at hand. Rules such as “Avoid more than 1 person in the elevator at a time during the pandemic” or “Refrain from having sexual intercourse with your students” could be good examples of indicator rules. Following Regan, a proper approach to indicator rules shows that these cannot be treated as either perfectly transparent or completely opaque.65 A rule is treated as perfectly transparent when we “see through” to its underlying reasons on every occasion, and we act accordingly depending on our judgment about them, that is, when we act according to the rule only because we consider that its content identifies what its underlying reasons require. On the contrary, we treat a rule as completely opaque if we follow it as such, regardless of its underlying reasons. The rule, in this sense, blocks our view, preventing us from “seeing through” to its underlying reasons. In this frame, an indicator rule could not be treated as completely opaque, for it would not have any indicative function in terms of its probability of leading us to acting consistently with its underlying reasons.66 The rule would be followed as if it were an end in itself, no matter its content, even if we were sure it is wrong in the light of underlying reasons – something that is irrational. Nonetheless, if we treated rules as perfectly transparent, they would “make no real contribution to decision-making at all”;67 all the guiding activity would be placed on agents’ judgment on underlying reasons, leaving the rule as a useless showcase which does not play any indicative role at all. So analyzed, rules are irrelevant.

  • 68 In several passages, Raz accepts the possibility that an authority lacks power over the agent based (...)
  • 69 Since the normative force of rules is derived from further justificatory reasons, the value of the (...)

31So, neither full opacity nor transparency captures the structure of indicator rules. On the indicator-rule conception, a rational agent can consider several reasons external to the content of the indicator rule allowing him to place trust in its likely success (the rule’s record in similar circumstances, the rule-giver’s relevant epistemic characteristics, etc.). Nonetheless, he can refuse to act according to the rule either when he has the rational conviction that it implies a wrong action on the balance of reasons or when he comes to consider that the external considerations in support of his reliance on the rule are flawed. So, as I see it, there is a double dimension in which indicator rules are under our negative practical control regarding our commitment to acting consistently with underlying reasons: (1) when it comes to considerations external to the content of the rule which would enable us to conceive of its lack of relevance,and (2) when it comes to considerations regarding actions required by the rule (their contents) that would show that it does not fit with the balance of underlying reasons (regardless of whether the external considerations are satisfied). I will call the former “critical control over the rule’s support,”68 and the latter “critical control over the rule’s content.”69 Regarding the latter, there are no conflicting reasons displaced in advance from the rational motivation of actions as in the case of rules as exclusionary reasons.

32It is worth remarking that critical control over the rule’s content could undermine our following it in at least two ways: when either (a) we are sure that the prescribed action will not accomplish the rule’s specific ends (effectiveness mistake) or (b) we do not know whether the action is mistaken, but we do know that, even if successful, it undercuts more relevant reasons in the balance of underlying reasons that override the rule’s end. Obviously, if we come to possess the capacity to identify whether the prescribed action is exactly what the underlying reasons require, and we act on this knowledge, then the rule is no longer an indicator rule: it loses its indicative function and becomes completely transparent (i.e., irrelevant).

  • 70 On this point, I follow Regan (1989: 1022), who in turn echoes some of Raz’s comments (Raz 1986: 28 (...)

33Thus, legal rules can be considered as indicator rules useful in contexts of uncertainty. The rule supplants our evaluative identification of the particular action demanded by the underlying reasons, since we are in no condition to act based on our own judgment about them. But the rule does not prevent us from acting based on either our critical control on its external support or our critical control over its content regarding the set of reasons justifying the rule. Furthermore, on the indicator-rule conception, the authoritative rule is primarily a reason to believe that the agent has practical reasons which favor acting just as the authority orders.70 The rule does not properly count in favor of doing something, so it does not objectively affect the agent’s normative situation. But it is an epistemic reason with an important practical role, because the rule influences rational obedience by showing that it is good to follow its content to conform with uncertain reasons which are relevant for the agent.

  • 71 Lewis 1969: ch. 1.
  • 72 Lewis 1969: 35.

34Similarly, an account of authority does not need to draw on the conceptual resource of exclusionary reasons in order to approach coordination problems. Following Lewis, a coordination problem is a subset of strategic situations where each implicated subject must perform actions compatible with others’ actions in order to obtain mutually beneficial outcomes.71 In this kind of strategic interaction, agents have to choose to do something, among several alternatives, that successfully aligns with others’ actions in a complex web of reciprocal expectations: there would not be a relevant reason to prefer one alternative over others (for instance, driving on the left or on the right), and the agents’ practical choice is decisively based on their expectations about one another, i.e., it is conditioned by others' actions that may be chosen. It is known that it is possible to get out of this collective situation when a coordination equilibrium – an alternative combination of choices where all would be better off if nobody acted otherwise – is salient, i.e., when this alternative stands out from the rest in the eyes of all agents involved.72 An authoritative directive can make a practical option salient. If each agent considers that the authoritative directive provides a solution which stands out for everyone, then all agents can act following that solution, and can, in this way, achieve coordination. Nonetheless, in this case, rational agents do not exclude their critical perspective on the authority. First, their rational choice is responsive to reasons external to the rule, this is to say, it is responsive to considerations – not based on the prescribed action – about the causal effects of the rule in the web of reciprocal expectations. Second, the rational agent could refrain from performing the prescribed action when he either knows that its content is not suitable to achieving coordination, or it goes against more relevant reasons than achieving coordination on the balance of reasons. Consequently, in a similar way to contexts of uncertainty, rational agents handle critical control over considerations external to the content of the rule and critical control over its content.

35In the same way, it could be possible to talk about another practical context where authority could play a relevant role for rational agents, without resorting to exclusionary reasons. I am thinking of cases where the satisfaction of valuable ends is connected to the origin of norms, cases where what is relevant is either how the norm was enacted or who enacted it. For example, if we accept that the democratic procedure vindicates values we endorse – like autonomy and equality – the fact that a democratic authority orders something is a reason to act even if, under certain circumstances, we do not agree with the established action in a concrete case. Our compliance would be a way to respect the values at stake: it would show respect for egalitarian participation and for the autonomy of others. Naturally, just like in cases of coordination and uncertainty, in this case it is possible to exercise critical control over both the rule’s external support and its content. For example, if we have reason to believe that the rule is not a product of a procedure attached to the relevant moral standards of participation, then the authoritative rule loses its relevance regarding the endorsed moral values. Likewise, even if the rule is based on right procedures, rational agents are attentive to its content. If we are sure that the prescribed actions are wrong according to the values of democratic procedure – for instance, the same values of autonomy and equality could demand that we act otherwise when the norm violates them seriously – then it could be justified to refrain from acting pursuant to the authority.

  • 73 Hass 2021: 419. I thank an anonymous referee for suggesting I address the thesis of presumptive suf (...)
  • 74 Hass (2021: 425–429) raises a dilemma about this kind of answer against the sufficiency of the unde (...)
  • 75 I think that legal rules may constitute genuine reasons for actions even though the underlying reas (...)

36It is noteworthy that the practical contribution of rules concerning cases of coordination and democratic procedure cannot be considered under the epistemic description of indicator rules. This last kind of rule is a guide that indicates probably right actions whose effective correction depends not on authoritative utterance, but on reasons existing independently of it which we are not in a position to assess because of our various epistemic limitations. In this sense, as we said above, the indicator rule is a reason to believe in the existence of previous reasons to act according to the prescribed action, but it itself does not constitute a reason for that action. The justification relies only on the rule’s underlying reasons that are presumptively sufficient for the prescribed action. According to the thesis of presumptive sufficiency, a valid reason, i.e., a reason which is not defeated or cancelled, is a presumptively sufficient reason for φ when it determines that φ should be done.73 In the context of indicator rules, valid underlying reasons are sufficient to support the prescribed action independently of the rule. The rule is only a credible epistemic guide to the actions for which the underlying reasons are sufficient. In this frame, the rule makes no contribution to the practical reasons the agent has. Conversely, coordinative and democratic contexts are able to show that the sufficiency of underlying reasons does not hold. Regarding the former, the rule can make a particular solution salient by influencing the web of reciprocal expectations. When it actually has this causal power, the authoritative utterance makes the prescribed action right for each of the agents involved seeking coordination. In this way, when an authority has the power to make a practical solution salient, its commands constitute a reason for an action which could not directly be supported by underlying reasons. The rule introduces an action that should be done to comply with underlying reasons demanding coordination, a specific action which need not be favored by those reasons before the existence of the rule – in other words, a justified action for which underlying reasons need not be sufficient.74 Similarly, in the case of the democratic origin of rules, the rule constitutes a reason by being the outcome of a democratic procedure. The procedure introduces an action that is favored by the existence of the rule and that could not be supported by the underlying reasons before the democratic decision, a circumstance that counts against their sufficiency.75

  • 76 However, I consider that some other cases could be added to this characterization. It is possible t (...)
  • 77 In the analytical jurisprudence, it has been considered that the concept of a “content-independent (...)
  • 78 Recently, N.P. Adams (2021) tried to defend the concept of an exclusionary reason through a “justif (...)

37Thus, it can be said that the practical relevance of rules in rational rule-following can be due either to the epistemic benefit of indicator rules for decision-making or to the constitution of the rule itself as a reason for action. So far, I have explored three cases in which legal authorities can play a relevant role in rational rule-following, dispensing with the idea of “exclusionary reasons”: cases of uncertainty, cases of coordination, and cases of values related to the democratic origin of norms.76 In all of these cases, the rule can be relevant because it can be rationally obeyed without our relying on our judgment as to whether its content coincides with the requirement of further justificatory reasons. We have also seen that, on our approach, rational agents maintain a dual rational control in rule-following: they maintain a “critical control over the rule’s support,” and a “critical control over the rule’s content.”77 Accordingly, our approach can avoid the charge of irrationality that affects Raz’s conception, because there are no excluded reasons in rational motivation.78 This means that there are no conflicting reasons precluded in advance from being the direct motive of our disobedience. In this regard, the proposed understanding of rational rule-following is fully compatible with the guise-of-the-good model of intentional actions. An agent following legal rules in the three abovementioned contexts acts intentionally, since he sees the rule as good to the extent that he considers it as able to allow him to act consistently with further justificatory reasons (grounding or underlying reasons).

7 Conclusion

38In spite of accepting that Raz’s concept of exclusionary reasons has irrational consequences, incompatible with intentional actions under the guise-of-the-good model, I argued that Rodríguez-Blanco’s account of intentional rule-following fails to address the practical relevance of rules. I have argued for an alternative conception on which it is possible to get around both insufficiencies in the frame of the guise-of-the-good model of intentional action which Rodríguez-Blanco advocates. On this understanding, there are contexts where authoritative legal commands could be seen as relevant facts under the critical supervision of rational agents pursuing the good. It goes without saying that I did not pretend to exhaust either the universe of practical situations where legal rules could be relevant in rule-following or the ways in which the explored contexts can mutually affect each other in decision-making. A full analysis able to deepen all of these issues will have to wait for another opportunity.

Acknowledgment.— This work was funded by the Chilean National Agency for Research and Development (ANID) / Scholarship Program / Doctorando nacional / 2020 – 21200175.

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Notes

1 Postema 1987.

2 See Alexander 1990; Clarke 1977; Darwall 2010; Edmundson 1993; Essert 2012; Flathman 1980; Gans 1986; Gur 2007; Hurd 1991; Mian 2002; Moore 1989; Perry 1989; Regan 1989; Schauer 1991; Shiner 1992; Whiting 2017.

3 Rodríguez-Blanco 2014: ch. 8; Rodríguez-Blanco 2015.

4 Raz 2011: 59–84.

5 Raz 1986: 56.

6 Raz 1986: 42–62.

7 Raz 1990: 193.

8 In his later work, Raz does not mention the “dependent thesis”; rather, he introduces the “independence condition.” This condition is satisfied when, regarding the matters covered by the normal justification thesis, it is more important to conform with reasons guided by authority than to decide for oneself (Raz 2009: 137).

9 Raz 1986: 55–56.

10 Raz 1986: 57–59.

11 Raz 1986: 46 (emphasis in the original).

12 According to Mian (2002), Raz faces a problem to explain how an agent can establish that an authority is better than his own judgment to satisfy underlying reasons (Mian 114–116). It seems that I can accept that the authority is likely right if I am able to have a level of knowledge that allows me to judge the balance of reasons and thus to assess the probable success of the directive. But if this is the case, then the directive cannot be preemptive or exclusionary, since I would follow the directive as a reliable source to conform with underlying reasons if I evaluated its content as likely right according to such reasons. In other words, the possibility of determining the conditions of the normal justification thesis from the agent undermines the preemptive one (115). However, this criticism does not consider enough that the agent can believe the likely success of the authority due to reasons external to the content of the rule. As I will say below, considerations like the record and success of the authority in enacting norms, its epistemic credentials, its influence over other people, and other considerations of this sort can support our considering its norms as likely right, even when we are not able to know whether the directive’s content exactly fits with the exigencies of underlying reasons. These reasons external to the content of the rule can be seen as considerations backing our taking the rule as a reliable guide in conforming with underlying reasons. Mian does not discuss why a position of this type would fail. He briefly says that the agent could be helped by its perception of an authority’s past directives and their outcomes, but he does not argue against this idea (116). I thank an anonymous referee for having suggested addressing Mian’s objection. We will see that a more serious problem for Raz has to do with the rational refusal to follow rules and its impact on intentional action.

13 The balance of reasons refers to the ponderation of the weight or strength of the relevant reasons in a given situation.

14 A significant subject reviewed below is how those excluded or displaced reasons can be determined.

15 In the Morality of Freedom, Raz speaks about “preemptive reason,” characterized as “a reason which displaces others” (Raz 1986: 42).

16 Raz 1990: 36.

17 Raz 1979: 17; Raz 1990: 39.

18 Raz 1979: 18.

19 Raz 1986: 67–69; Raz 1990: 63–64, 195.

20 Raz 1986: 30–31, 49–50, 56, 73; Raz 1990: 64, 195.

21 Cf. Davidson 1963. Davidson considered that the causal basis of intentional actions is what he called a “primary reason.” This reason consists of a combination of two mental states: a pro-attitude (desires, impulses, etc.) and an instrumental belief.

22 Rodríguez-Blanco 2014: 25.

23 Rodríguez-Blanco 2014: 25.

24 Anscombe 1963.

25 Rodríguez-Blanco 2014: 62.

26 Rodríguez-Blanco 2014: 28, 47, 61.

27 Rodríguez-Blanco 2014: 40. For an argument in favor of intentional actions made for no reason, see Alvarez 2009. I am not debating here the possibility of cases of intentional actions made for no reasons, or whether the guise-of-the-good model has the capacity to make sense of these apparent cases. I am only discussing how we could understand intentional rule-following from the guise-of-the-good model of intentional actions, without taking part in those discussions.

28 The standard view has to face the well-known objection focused on its incapacity to explain deviant causal chains, as well as other challenges concerning its instability when it comes to securing the perdurability of intentions. Cf. Rodriguez-Blanco 2014: 44–45. On the extensively discussed problem of deviant causal chains, see Stout 2010.

29 Rodríguez-Blanco 2014: 45–47. On this, see Anscombe 1963: ch. 6.

30 Rodríguez-Blanco 2014: 30.

31 Rodríguez-Blanco 2014: ch. 2.

32 Rodríguez-Blanco 2014: 140.

33 That would imply the highly problematic position that legal rules in themselves, independently of their content or usefulness, have a kind of ultimate value.

34 For a similar example, see Rodriguez-Blanco 2014: 142.

35 Rodríguez-Blanco 2014: 158.

36 Rodríguez-Blanco 2014: 140, 158–159.

37 It is noteworthy that Raz (1990: 179–182) distinguishes between conforming with a reason and complying with a reason. Someone conforms with a reason only if he performs the action required by such a reason in the situation in which it applies. On the other hand, someone complies with a reason if he not only acts in accordance with that reason but acts that way because he judges that that reason requires it. Exclusionary reasons are practical considerations which lead us to conform with underlying reasons in situations where acting in our own judgment on them turns out to be unfavorable. In such contexts, it would be rational to renounce complying with underlying reasons in order to conform with them by following exclusionary reasons. According to Rodríguez-Blanco (2014: 155–159), mere conformity with rules is not compatible with intentional actions.

38 Rodríguez-Blanco 2014: 155 (emphasis in the original).

39 Rodríguez-Blanco 2014: 157.

40 Rodríguez-Blanco 2014: 156 (emphasis in the original).

41 Rodríguez-Blanco 2014: 142.

42 Rodríguez-Blanco 2014: 160 (emphasis added).

43 “To coordinate our different activities and pursue the good, we act on the presumption of the goodness of legal authority” (Rodríguez-Blanco 2014: 163).

44 As set out in L.L. Fuller 1969: 38–39.

45 Adam Perry’s (2015) account of the acceptance of rules sets something similar in considering that acceptance can be held independently of belief about the content of the rule. According to Perry, the attitude of acceptance toward the rule can rely on presumptions or fictions about what ought to be done. This by no means signifies that a legal rule constitutes a distinctive reason for action thanks to its mere acceptance, only that it is possible for there to be an adequate account of the acceptance of rules which is not directly based on the value of their contents.

46 Raz 1990: 40, 46, 79.

47 Raz 1990: 79–80, 187–188.

48 Raz 1990: 79 (emphasis added).

49 Raz 1990: 46.

50 This is fully coherent with Raz’s formulation of the preemptive thesis quoted above, since the rule does not exclude all conflicting reasons; rather, it “should exclude and take the place of some of them” (Raz 1986: 46, original all italicized).

51 Raz 1990: 79.

52 Raz 1990: 187.

53 Raz 1990: 187.

54 Raz says: “In a case to which a reason incompatible with the norm, but not excluded by it, applies one must determine what one ought to do on the balance of reasons, comparing the weight of the norm as a first-order reason with the weight of the competing reason” (Raz 1990: 77). In the example, the value of life outstrips the importance of honesty or moral integrity, and thus the rule “Never deceive” as a first-order reason.

55 Perhaps what I call cases of nonapplication can be understood under what Raz calls “cancelling conditions” (Raz 1990: 27). According to Raz, a cancelling condition is a fact in virtue of which a reason loses its normative force. This fact need not be a reason itself, and when it appears, there is no conflict between reasons that has to be decided by their relative strength. Suppose that you needed a ride to the airport next week, and I promised you that I would do it. This promise was a reason to give you a ride. Suppose now that you release me from my promise. The fact that you now release me form my promise is not a stronger reason overriding the promise; instead, it is a condition that cancels the promise as a reason. In the case of the park, it seems to be something like this: the fact that there are no visitors in the park is not a reason overriding the rule, but a situation which makes the rule lose its normative force in the situation. The norm loses its status as a normative guide in that specific occasion because there is no danger in using the vehicle.

56 On this, see Gans 1986: 385 and Gur 2007: 198.

57 Like a Trojan horse, the ponderation of the alleged excluded reason gets surreptitiously folded into the motivation of the action through the identifying criterion of such a reason.

58 Raz 2009: 144.

59 Raz (1990: 189) says that “legitimate authority has the right to issue directives within the sphere of its jurisdiction.”

60 This would be the case of the aforementioned rule “Never deceive”: the authority was empowered to exclude reasons related to integrity and honor, but not considerations related to the protection of life.

61 I consider that this is the best ontological approach to normative reasons against conceptions advocating that reasons could be taken as propositions or mental states. Nonetheless, it is not possible for me to address this interesting and complex contemporary debate here. For discussion on the ontological nature of practical reasons, see Alvarez 2010 and Dancy 2000.

62 Raz (2009: 148) says that “[t]he service conception makes the legitimacy of authorities turn primarily on their value in achieving something beyond them, i.e. conformity to background reasons existing independently of them.”

63 Regan 1989: 1004–1012.

64 Regan 1989: 1004.

65 Regan 1989: 1012.

66 It is important to make clear that the distinction between opaqueness and transparency in the case of indicator rules, a distinction I take from Regan, cannot be equated with the senses of opaqueness and transparency first used by Raz in “Reasoning with Rules” (Raz 2009: 203–219). In the case of Regan, the distinction primarily points to the attitude that agents take toward rules as guides to action; in the case of Raz to the way in which facts – like the existence of legal rules – relate to the value of actions, and how that affects the constitution of practical reasons. As we saw, for the indicator rule model, the question is how an agent accepts and follows the rule in light of its justification: if the rule is followed solely on the basis of an agent’s beliefs about the rightness of its legal content, that is, solely on the basis of its further justificatory reasons, it would be treated as “transparent”; if it is followed solely on the basis of the rule itself, without considering whether it is suitable in view of further justificatory reasons, it would be treated as “opaque.” By contrast, although Raz does not refer to transparency and only focuses on opaqueness, it can be said that the distinction between them is instead about facts and their contribution to the value of actions. According to Raz, “reasons are facts which show what is good in an action” (Raz 2009: 205). With this in mind, the distinction can be drawn as follows: a fact is “transparent” in relation to an action when it indicates what is good in or about the action, and this enables the fact to be a reason for that action. For example, that a cup of wine is poisoned is a fact that identifies the action of not drinking out of it as valuable, and thus that fact can constitute a reason for that action. On the other hand, a fact is “opaque” regarding an action when the fact does not disclose any good quality in it, which presents us with a puzzle as to the possibility of rules being reasons, as they themselves do not seem to point to any value in the action they prescribe. In this sense, it would not be clear how a rule in itself would be able to favor actions and thus be a distinctive reason, not a summary of other justifying reasons. This last problem has been addressed by authors like Rawls (1955), Lyons (1965), Hodgson (1967), and more recently Hass (2021). I argue below that when it comes to coordination and the democratic origin of norms, it is possible that rules themselves constitute reasons for action.

67 Regan 1989: 1011.

68 In several passages, Raz accepts the possibility that an authority lacks power over the agent based on reasons external to the rule, reasons involved in what I call “critical control over the rule’s support.” For example, in the Morality of Freedom, he says that if an authority is bribed in making a decision or is otherwise drunk, or if there is additional information showing that the authority is not better than the agent at deciding on the affairs concerned, then the authority loses legitimacy to command (Raz 1986: 42, 67–68). Similarly, in his later work, he refers to the idea that someone or somebody can be a legitimate authority if their function is knowable, i.e., the agent must be able to have trustworthy beliefs that a certain authority is better than his own judgment at conforming with reasons that already apply to him in the relevant cases (Raz 2009: 147–148). If an agent cannot have reasonable beliefs about an authority’s suitable performance or this feature itself is unknowable, then he is not subject to such an authority. As I understand Raz, those reasonable beliefs in the authority’s capacity to fulfil its functions would rely on reasons external to the content of the rule. Be that as it may, it is worth noting that none of this affects my previous criticism of Raz, because that criticism drew on the inability of his conception to address the rejection of rules based on considerations about their contents in the light of excluded reasons. Likewise, the indicator-rule conception just introduced does not suffer from such an inability, as it does not accept the idea of excluded reasons, and thus it is coherently open to the critical rejection of the rule due to its content in the light of the matters on which the authority is empowered to command. This last point substantially separates the indicator-rule conception from Raz’s account.

69 Since the normative force of rules is derived from further justificatory reasons, the value of the rule cannot be independent of its content. If this content conflicts with the exigencies of underlying reasons, the rule cannot be said to be valuable.

70 On this point, I follow Regan (1989: 1022), who in turn echoes some of Raz’s comments (Raz 1986: 28–31).

71 Lewis 1969: ch. 1.

72 Lewis 1969: 35.

73 Hass 2021: 419. I thank an anonymous referee for suggesting I address the thesis of presumptive sufficiency.

74 Hass (2021: 425–429) raises a dilemma about this kind of answer against the sufficiency of the underlying or justificatory reasons of rules. According to him, this type of answer either relies on an uninteresting mechanical conception of actions, or it cannot reject a conception of rule-following preventing justificatory reasons from being sufficient. I disagree with Hass, but both horns of the dilemma deserve a careful answer that for reasons of space I cannot give here. In any case, suffice it to say that I think the content and scope of both objections is not quite clear, and that the second horn of the dilemma would beg the question, because it seems to me that Hass presupposes, but does not show, the sufficiency of justificatory reasons in the relevant cases.

75 I think that legal rules may constitute genuine reasons for actions even though the underlying reasons are sufficient. Contra Hass (2021: 424–425), this means that the sufficiency of underlying reasons can be compatible with the distinctive constitution of reasons from rules. For example, it is possible that, in cases of coordination, the agents involved have a reason to do the prescribed action for a coordinative reason, which makes that action salient, that is different from the coordinative rule. Hence, the rule is able to constitute a second reason for the same action when it has causal influence over the agents, which reinforces the reciprocal expectation of them for the same solution. In this example, we can know that the rule constitutes an autonomous reason because, if the other coordinative reason were absent, the rule could still count as a reason for the prescribed action. In other words, regardless of the existence of other sufficient reasons for the specific prescribed action, the rule can still count as a distinctive reason.

76 However, I consider that some other cases could be added to this characterization. It is possible that an agent without any kind of relevant epistemic limitation strongly disagrees with the content of a legal norm, but its enactment produces a reason for him to obey, as his disobedience can have relevant effects on the reasons which apply to him. In these cases, the influence of rules draws on the consequences of its enactment for the structure of the balance of reasons.

77 In the analytical jurisprudence, it has been considered that the concept of a “content-independent reason” is able to distinguish the kind of reason that a legal rule is (cf. Hart 1982; Raz 1986: 35–37; Green 1988: 41–56, 225–226). Yet this concept has been interestingly attacked (Marwick 2000). I believe that it is possible to defend a sense of content-independent reason compatible with the ideas I am proposing. However, I avoid using the notion because it requires a careful treatment which I cannot engage with here.

78 Recently, N.P. Adams (2021) tried to defend the concept of an exclusionary reason through a “justificatory” account aimed at coherently explaining cases where the characteristics of the commanded action apparently defeat our following the rule. Nevertheless, this account is based on an understanding of the distinction between first-order and second-order reasons that I am not sure holds.

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References

Electronic reference

Yohan Molina, “Norms, rationality, and relevance under the “guise of the good””Revus [Online], 47 | 2022, Online since 24 May 2022, connection on 03 February 2023. URL: http://journals.openedition.org/revus/8179; DOI: https://doi.org/10.4000/revus.8179

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About the author

Yohan Molina

Pontifical Catholic University of Chile.

Address: Pontificia Universidad Católica de Chile – Departmento de Filosofía - Vicuña Mackenna 4860 - Macul, Región Metropolitana - Santiago, Chile - P.C.: 7820436

E-mail: yamolina (at) uc.cl

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