Sie sind auf Seite 1von 33

Legal Obligation and Reasons

Christopher Essert*

1 Introduction
According to the Legal Rationalist, the law claims to give its subjects rea-
sons for action. The leading Legal Rationalist, Joseph Raz, says, “the law
claims that the existence of legal rules is a reason for conforming behaviour.” 1
Putting the same point more casually, he writes:

The law sets things straight: telling people ‘this is what you
should do and whether you argree that this is so or not, now that
it is the law that you should you have the law as a new, special
kind of reason to do so.’2

Jules Coleman, who also at times plays the part of the Legal Rationalist,
agrees:

The prevalent view among legal positivists today is that law pur-
ports to govern conduct as a practical authority. The distinctive
feature of law’s governance on this view is that it purports to
govern by creating reasons for action.3

*
Assistant Professor, Queen’s University Faculty of Law.This is a draft of a paper that is
forthcoming in Legal Theory. Thanks especially to Scott Shapiro, and to Larry Alexander,
Les Green, Adam Perry, David Plunkett, and Zoë Sinel for comments on earlier drafts.
1
Joseph Raz, The Authority of Law 30 (1980). For more general comments to
the same effect see id. at 3-36, 233-249. See also oseph Raz, Practical Reason and
Norms 155 (2nd Ed., 1999): “legal rules are norms (i.e reasons for action”) and id. at
49-84, 149-199; Joseph Raz, The Morality of Freedom 23-69 (1986); and Joseph
Raz, Between Authority and Interpetation 126-165, 203-222 (2010).
2
Joseph Raz, Between Authority and Interpetation, id. at 7.
3
Jules Coleman, The Practice of Principle 71 (2001).

1
Or more succinctly, “Law claims to create reasons for acting.” 4
The Legal Rationalist is concerned to argue that the law claims to give its
subjects reasons for action because he is concerned to establish the intuitively
plausible thought that the law is normative, that the law makes a normative
difference in the lives of its subjects. Jules Coleman has put the same point
in terms of a practical difference, “a difference, that is, in the structure or
content of deliberation and action.” 5 The idea comes originally from Hart,
who famously argued against Austin’s sanction-based theory of law in part
on the grounds that it could not account for the fact that, at least sometimes,
people take their legal obligations as reasons for performance.6 Reasons for
action being “the key normative phenomenon” 7 the most obvious way to
establish that the law makes this normative difference in people’s lives is by
arguing that the law claims to give reasons for action to its subjects. Call
this thought the Normative Reasons Intuition.
In addition to the intuitively plausible thought about the normativity of
law, the Legal Rationalist can rely in arguing that the law claims to give
reasons for action on a second intuition, that that people in general seem to
take the law as a reason. People sometimes say things like “I don’t download
songs from BitTorrent because it’s a violation of the Copyright Act” or “Sorry
I took so long to get here but I was driving under the limit.” When they do so,

4
Jules Coleman, The Architecture of Jurisprudence 120 Y.L.J. 1, 78 (2011). Other legal
rationalists include Andrei Marmor (see note 11, infra) and John Gardner (see note 12,
infra). “Legal Rationalist” might be too broad a name for the view I plan to critize since
it might seem to cover anyone who holds the view that the law’s normativity is to be
explained in terms of the law’s effect on the reasons of its subjects (and that includes
me). A more accurate name might therefore be something like “Theorist of Legal Reason-
Giving.” But that’s too much of a mouthful so, having flagged the point, I’ll just stick
with “Legal Rationalist” to save words.
5
Jules Coleman, Incorporationism, Conventionality, and the Practical Difference Thesis,
4 Legal Theory 381, 383 (1998). Closely related to Coleman’s Practical Difference
Thesis is (the rebuttal of) Raz’s No Difference Thesis as discussed in Raz, The Morality
of Freedom, supra note 1 at 48-53.
6
For example: “The fundamental objection is that the predictive interpretation obscures
the fact that, where rules exist, deviations from them are not merely grounds for a pre-
diction that hostile reactions will follow or that a court will apply sanctions to those who
break them, but are also a reason or justification for such reaction and for applying the
sanctions.” See H.L.A. Hart, The Concept of Law 84 (2nd Ed, 1994).
7
Joseph Raz, From Normativity to Responsibility 11 (2011).

2
they seem to be explaining their actions by reference to the law’s directives
and so treating the law as their motivating or explanatory reason. Although
there are important distinctions between explanatory and normative reasons,
it is plausible to suppose that an agent who φs because of some consideration
p—that is, an agent who is motivated by p to φ and guided by p in her φing—
takes p to be a normative reason.8 And while it is possible to be confused
about our normative reasons, it seems unlikely that everyone is confused all
the time; so the fact that people consistently take the law as their motivating
reason and guide their conduct by the law does seem to suggest that the
law does provide normative reasons for its subjects.9 Call this thought the
Explanatory Reasons Intuition.
Based on these two intuitions, the Legal Rationalist argues that the law
claims to give reasons for action to its subjects. We can make the Legal Ra-
tionalist’s claim more precise by noting how it follows from the more familiar
idea that the law claims to be a legitimate authority.10 It follows in two
steps. First, “It is widely assumed in the literature that a legitimate direc-
tive of a practical authority imposes an obligation on the relevant subjects
to comply.” 11 And since the law claims to be an authority, the law claims
that when it directs an agent to φ the agent thereby has an obligation to φ.
Second “the fact that one has an obligation is a reason — a reason of special
force — for doing whatever one has an obligation to do.” 12 Putting the two
points together we get:

To claim legitimate authority is to claim that one’s directives


provide reasons for acting that apply to those over whom one
claims authority.13

8
Id. at 70.
9
In a way this is just a more precise restatement of Hart’s claim from note 6 above: the
fact that the confused man takes the law as a (motivating) reason suggests (although it
does not prove) that the law gives (normative) reasons.
10
“Every legal system claims authority”: Raz, The Authority of Law, supra note 1,
v.
11
Andrei Marmor, An Instititutional Conception of Authority, 39 Phil. and Pub.
Affairs 238 (2011).
12
Gardner, What is Tort Law For? Part I – The Place of Corrective Justice, 30 Law
and Philosophy 1, 30 (2011, footnote omitted).
13
Coleman, The Architecture of Jurisprudence, supra note 4 at 18.

3
And if it’s a necessary feature of law that it claims authority, then the argu-
ment seems to establish that law claims to provide reasons for its subjects.
Schematically the argument as a whole goes like this:

(1) The law claims to be a legitimate authority (Premise).

(2) If a legitimate authority directs a subject to φ the subject is obligated


to φ (refining (1)).

(3) The fact that an agent is obligated to φ is a reason for her to φ


(Premise).

(4) So the law claims that its directives are reasons.

Note the two distinct premises. First there is the Razian premise that the
law claims to be a legitimate authority. And second there is the following
premise, which I illustrated above with a quote from John Gardner, that I’ll
call Obligations as Reason-Giving (or OAR for short):

Obligations as Reason-Giving (OAR): the fact that A is


obligated to φ is itself a reason for A to φ.

Unfortunately for the Legal Rationalist, OAR is false. Legal obligation has
certain features which mean that the fact that a certain action’s being legally
obligatory cannot itself constitute a reason to perform that action.
As I’ll argue, legal obligatoriness is what is sometimes called verdictive
or conclusory, as opposed to contributory (§2); moroever, an action’s being
legally obligatory is something that obtains in virtue of a process of actual
human deliberation in a way that means that it cannot itself be a reason for
actio (§3). So the Legal Rationalist’s argument that the law claims to give
reasons for action fails. To vindicate the thought that the law does not claim
to give reasons for action, I need to provide some explanation—or explaining
away—of the two intuitions that the Legal Rationalist claims in support of
his argument (§4). So I’ll argue (§5) that we can explain the Explanatory
Reasons Intuition away by noticing that much of the time, when people
refer to the law in explaining their actions, they are referring not to the
sort of reasons contemplated by OAR, but rather to other sorts of reasons
triggered by the law in a way that does not help the Legal Rationalist. And
(§6) the same goes for the Normative Reasons Intuition. I’ll show how we
can establish that the law makes a normative difference in the lives of its

4
subjects in a way that is consistent with the falsity of OAR. To say that
the law does not claim to give its subjects reasons for action is not to deny
that the law claims that its directives have some special practical force on
its subjects’ deliberations. It is not to deny that, as Coleman recently put it,
“Law impacts what we have reason to do.” 14 What I deny, rather, is that the
law’s effects on our practical deliberation or on what we have reason to do
must include reason-giving. In a way this is just the logical next step to take
after accepting the Razian idea of second-order reasons: Raz teaches us that
the law’s impact on our reasons is not limited to adding weighty reasons in
its favour, but that it might also include second-order exclusionary reasons.
Once we make that step, we can abandon the idea that the law creates first-
order reasons and still capture our intuitions about how the law affects or
claims to affect what we ought to do. To close I’ll consider one objection to
the effect that the law might interestingly claim to give reasons in a way not
captured by OAR (§7) and finally (§8) I’ll suggest some implications of my
argument.
Before getting started, I need to make four sets of remarks by way of
clarifying what I take to be some important but peripheral issues. First: on
the idea that the law claims to give reasons to its subjects.15 Saying that
the law makes normative claims might seem mysterious, since the law is not
an agent and only agents can make claims. But it isn’t. The claims that
the law makes are just those claims made by some set of legal officials when
they are acting in their capacity as legal officials.16 I won’t say anything here
about the conditions under which the law’s claim might be true or genuine
or what have you. That’s because, as important an issue as understanding
those conditions is, it is not the issue that is my concern here: my inquiry
is about how to understand the kind of normativity that the law claims for

14
Coleman, The Architecture of Jurisprudence, supra note 4 at 71.
15
The idea is most closely associated with Raz. See, e.g., Raz, The Authority of
Law, supra note 1, v. But it is widely accepted by many prominent legal philosophers:
see, e.g., Coleman, supra note 4; Scott Shapiro, Legality (2011); John Gardner, How
Law Claims, What Law Claims, in Institutionalized Reason: The Jurisprudence
of Robert Alexy 29 (Matthias Klatt, ed. 2012).
16
For this interpretation of the idea that the law makes normative claims see Gardner,
id. See also Joseph Raz, Ethics in the Public Domain 215 (1994): “The claims
that law makes for itself are evident from the language it adopts and from the opinions
expressed by its spokesmen,” a passage cited by Gardner in id.

5
itself, about what we can coherently understand the law to be claiming.17
Second : on the legal point of view. The idea of the legal point of view is
important here because in what follows I need to be careful of a pretty serious
terminological difficulty. The phrase “legal obligation” is as Scott Shapiro
notes, ambiguous between two interpretations.18 First, “legal” might be read
“adjectivally,” according to which a legal obligation is a kind of obligation, like
a promissory obligation or a professional obligation. Second, “legal” might
be read “perspectivally” according to which “legal obligation” refers to an
obligation from the legal point of view. On this perspectival interpretation,
when I am under a legal obligation to φ, I am under a genuine (perhaps
moral) obligation to φ from the legal point of view. The easiest way to
understand that idea is to say that when I am under a legal obligation to φ,
the law claims that I am under a genuine (perhaps moral) obligation to φ.19
My argument in what follows needs to tread this line carefully. On the one
hand, OAR relies on the fact that law claims to be an authority and thus that
it claims to create genuine obligations. My argument against OAR is based,
in effect, on accepting that these claims might sometimes be true—which I
think I can do on the (roughly Razian) grounds that while the law’s claim
to authority might be false, it cannot necessarily be false; this seems to me
to suggest that we can fruitfully assume that it might sometimes be true in
order to see just what such a claim would entail—and on challenging the
conclusion that the law could create reasons even if they were. As such the
entire argument accepts the law’s claim or takes place, as it were, from or
within the legal point of view.

17
So that means that my arguments against OAR are not directly about any fundamental
questions about the nature of law (what law is, whether it can be a legitimate authority,
when (if ever) legal obligations are genuine (perhaps moral) obligations, or what have
you). But the arguments in what follows aim to clarify some of the normative structure
implicated by such fundamental questions and so (I hope) make those questions easier to
answer.
18
See Scott Shapiro, Legality, 184-188 (2011).
19
Shapiro explicitly ties the idea of the legal point of view and the idea of the law’s claim
together in id. at 279-280 where he says, “The legal point of view purports to represent the
moral point of view.” To similar effect see Gardner, How Law Claims, What Law Claims,
supra note 15 (“when, according to law, there are obligations and rights and so on, law’s
claim is that these are moral obligations and rights and so on, not merely legal ones.”)
and (perhaps) Jules Coleman, Beyond the Separability Thesis: Moral Semantics and the
Methodology of Jurisprudence, 27 O.J.L.S. 581, 596-597.

6
On the other hand, even from the legal point of view, according to which
legal obligations are genuine obligations, it still seems plausible to say that
there is something to the adjectival reading of “legal obligation.” The idea
is that obligations created by law have certain characteristics that perhaps
not all obligations have. In particular, legal obligations are created by legal
institutions, in contradistinction from, e.g., the paradigmatic moral obliga-
tions not to lie, murder, etc. And I’ll rely on these special features from time
to time in order to demonstrate that even from the legal point of view, the
fact that one is under a legal obligation to φ is not itself a reason for one to
φ.
Third : on some features of obligation in general (and legal obligation in
particular). I suggested above that we can make progress in understanding
legal normativity by granting the law’s claim to legitimate authority in order
to see what would follow. So suppose we do so, and in so doing grant that
legal obligations are genuine obligations. Then any account of legal obligation
(or its features) needs to be consistent with some set of intuitions or platitudes
about obligation in general.20 My aim is not to provide a full account of
obligation, legal or otherwise. But it is part of an account of one aspect of
obligation—its relation to reasons—and so it’s worthwhile to at least mention
a few such platitudes. For one, it is very plausible to suppose that when an
agent is obligated to φ she has some reason to φ.21 As we shall see, this
plausible but less precise idea might be behind some of the intuitive force
of OAR. But being obligated to φ means more than just having a reason to
φ in at least two distinct ways. First, obligation is linked in some way to
wrongness: generally speaking it is wrong to fail to do what one is obligated
to do. Second, being obligated to φ seems to remove the question of whether
or not to φ from the obligated agent’s proper scope of deliberation: obligation

20
That is: in order to understand the law’s claim to obligate its subjects we can hold
the claim up to the best theory of obligation we have (a theory we construct by trying
to provide the best account possible of some set of intuitions or platitudes or truisms
about obligation: see Michael Smith, The Moral Problem (1994), Frank Jack-
son, From Metaphysics to Ethics: A Defence of Conceptual Analysis (2000),
Scott Shapiro, Legality (2011)) and see whether the law could claim to be doing
something that is consistent with that theory.
21
See for example Leslie Green, Obligation in The Oxford Handbook of Jurispru-
dence and Philosophy of Law 514, 516 (Jules Coleman and Scott Shapiro, eds., 2002):
“to have an obligation is to have a reason to act or to refrain from acting.”

7
is peremptory. Each of these two features of obligation will be important in §2
and I’ll discuss them there. Any general theory of obligation needs to explain
these features (or explain them away).22 What about legal obligation?23 I
noted above that, even on the perspectival reading of “legal obligation” one
might plausibly think that legal obligation is an importantly distinct subset
of obligation more generally, because legal obligations are created by legal
institutions. In §3 I’ll rely on an idea in this neighbourhood as part of my
argument against OAR.24
Fourth: on obligations and reasons and facts. You might wonder, why is
OAR so awkwardly phrased, with that reference to the fact that A is legally
obligated to φ, given how often people say things like “A’s legal obligation

22
Obligation is also generally thought to be categorical such that an agent’s being obli-
gated to φ does not depend on her own projects or goals (see Joseph Raz, Promises and
Obligations, in Law, Morality, and Society: Essays in Honour of H.L.A. Hart
210 (Joseph Raz and P.M.S. Hacker, eds. 1977)); this won’t concern us here. Raz’s the-
ory of obligation according to which an the fact that A is obligated to φ is a categorical
protected reason for A to φ (see id.) is the most prominent theory in the legal literature,
and one that does a very good job of accounting for the platitudes about obligation I
mentioned. Of course, I think Raz’s account fails because, among other reasons, it is com-
mited to OAR. The next most prominent theory of obligation, the sanction theory, fares
even worse than Raz’s as a general account, for the reasons famously set out by Hart (in
Hart, The Concept of Law, supra note 6; see also P.M.S. Hacker, Sanction Theories
of Duty, in Oxford Essays in Jurisprudence, 2nd Series 131 (A.W.B. Simpson, ed.,
1973). For an excellent discussion of these theories as well as of obligation more generally
see David Owens, Rationalism about Obligation, 16 European Journal of Philosophy
403 (2008).
23
The theory of legal obligation gestured towards by Mark Greenberg (in his The Stan-
dard Picture and Its Discontents, in Oxford Studies in the Philosophy of Law,
Vol 1, 39 (Leslie Green and Brian Leiter, eds., 2011) is importantly distinct from the the-
ories discussed in the previous note. Unfortunately I don’t have the space here to consider
the relationship between that theory and OAR or my arguments against it.
24
In light of that note the following difference between the argument in §2 and the argu-
ment in §3. The argument in §2 relies on what might be more general features of obligation,
rather than on any special features of legal obligation (where “legal” is understood adjec-
tivally), that means that it might apply not just to legal obligation but to obligation in
general. On the other hand, the argument in §3, relying as it does on special features of le-
gal (again, understood adjectivally) obligation has an explicitly narrower scope: it applies
only to those sorts of obligation which exist as a result of the same sorts of deliberations
as do legal obligations. However, for the purposes of this article I restrict the arguments
in §2 to the legal context as well; I don’t have space to explore the broader question.

8
to φ is a reason for A to φ”? It is phrased that way because I take the view
that obligations are not the right sort of things to be reasons:25 reasons are
most plausibly understood to be facts,26 and obligations are not facts.27 In
discussing a related point about desires and reasons, Mark Schroeder writes,
“if we say that someone’s reason is her desire, then we can be plausibly rein-
terpreted as meaning that her reason is the fact that she has that desire.” 28
What Schroeder says goes for desires, I say goes for obligations. Thus, the
claim “A’s legal obligation to φ is a reason for A to φ” can plausibly be
reinterpreted as the claim “the fact that A has a legal obligation to φ is the
reason for A to φ,” which is to say, as the claim “the fact that A is legally
obligated to φ is a reason for A to φ,” which is to say, as OAR. With those
four clarifications in hand, we can move on to the argument.

2 Legal Obligation and Verdictiveness


One well-established idea in jurisprudence is that the normative effect of a
legal obligation to φ on a subject is not simply to provide the subject with one
additional reason to φ. The Legal Rationalist surely agrees with Hart that

25
This is a common view among Legal Rationalists. See, e.g., Gardner, What is Tort
Law For? Part I - The Place of Corrective Justice, supra note 12 at 31: “An obligation is
not a reason, but the fact that one has an obligation is a reason.” In Practical Reason
and Norms, supra note 1 at 51, Raz makes the same point regarding rules: “Since rules
are objects and only facts are reasons rules are not, strictly speaking, reasons. The fact
that there is a rule that p is a reason and not the rule that p itself. For brevity I shall,
however, refer to rules as reasons.”
26
For good arguments to this effect see Mark Schroeder, Slaves of the Passions
20-21 (2007), and John Gardner and Timothy Macklem, Reasons, in The Oxford Hand-
book of Jurisprudence and Philosophy of Law 440 (Jules Coleman and Scott
Shapiro, eds., 2002).
27
As David Plunkett pointed out to me in the course of a very helpful discussion of these
issues, there are enough moving parts in metaethics and metanormative theory that one
could argue for a view according to which obligations are facts (and so could be reasons).
But I am just going to assume that reasons are facts but obligations are not because (i)
I suspect that any plausible version of such a view will have a hard time accounting for
the features of obligation that I mentioned in the third clarificatory point, and (ii), as I
mentioned in note 25, supra, most Legal Rationalists seem to think reasons are facts but
obligations are not.
28
Schroeder, Slaves of the Passions, supra note 26 at 21.

9
the law in directing an agent to φ claims to “cut off or exclude” deliberation
on the merits of φing, that the legal obligation is meant to be a “peremptory”
reason to φ.29 Part of what Hart is after here is the idea that deliberation on
the matter of whether or not to φ is closed or settled by the obligation. But
deliberation is cut off because the law has reached some sort of conclusion or
answer or verdict on the question of whether or not to φ. The legal obligation
not to φ contains a practical verdict about φing: it is not to be done.
This idea – that the legal obligation not to φ provides or contains a
verdict that φing is not to be done – is the idea that legal obligation is
verdictive. For something to be verdictive is for it to express or embody a
verdict or conclusion as to what ought to be done.30 It is plausible to say
that wrongness is verdictive. So to say that such-and-such an action would
be wrong is to express a verdict on that action – it is one which should not
be done. To get a handle on the idea of the verdictive it helps to contrast it
with the contributory. A contributory consideration is one which contributes
to the verdict, by increasing the weight (as it were) on the verdict’s side. So
that φing would harm someone, or would cause extreme suffering, or would
have costs that vastly outweighed any benefits, say, would be contributory
considerations on the side of the verdict that φing would be wrong.31
The verdictive cannot provide reasons. The basic thought is inherent in
the idea of a verdict: the verdict is based on the underlying contributory

29
As argued in H.L.A. Hart, Essays on Bentham 253-254 (1982).
30
Don’t be thrown off here by the fact that a ‘verdict’ in law normally expresses a
theoretical conclusion (i.e. ‘guilty’ or ‘not guilty’ from which some practical consequences
typically flow). Here the verdict that one ought (or ought not) to φ is meant to be a
practical verdict. It is not the verdict that it would be good or right or just to φ, but the
verdict that one ought not to do it
31
The term ‘verdictive’ as I’m using it here was introduced originally by Phillipa Foot
(see Foot, Virtues and Vices 181 (2003)). Foot, and Phillip Stratton-Lake following
her (see Stratton-Lake, Kant, Duty, and Moral Worth 14 (2000)), contrast the
verdictive with the evidential. But as Jonathan Dancy notes (in Dancy, Ethics With-
out Principles 16 (2004)), this seems not quite right, since the contrast is not between
verdicts and considerations which suggest that we ought to believe that the verdict is cor-
rect, but rather between verdicts and the considerations which actually go towards making
the verdict true. (That is, contributory considerations ground verdictive considerations
metaphysically, not epistemically.) For what it’s worth, note also that this is a different
sense of ‘verdictive’ than that employed by J.L. Austin in his How To Do Things With
Words (1955).

10
considerations and so cannot itself then count as an additional contribution
in favour of the same conclusion. If some action is (morally) wrong, that’s
because some set of reasons not to perform it make it wrong. To take some
examples from Foot, that an action would hurt someone or humiliate him
are reasons not to do it. The action is wrong when those reasons not to do
it defeat the reasons to do it.32 That the action is wrong precisely is just
the verdict on the reasons pro and contra. But if the wrongness is verdictive
– if that an action is wrong is a verdict on the reasons for and against that
action – then it cannot be the case that an action’s wrongness is also itself a
reason not to do it. As Jonathan Dancy says,

It is incoherent, in this light, to suppose that the [wrongness] can


add to the reasons on which judgment is passed, thus, as one
might say, increasing the sense in which, or the degree to which,
it is true. 33

The idea is this: wrongness itself, as verdictive, attaches to an action in virtue


of the reasons pro and contra that action. It is, as Dancy says, ‘incoherent’
to think that it can thereby also be a reason for that same verdict – because
a verdict cannot be a reason for itself.
Now shift from moral wrongness to legal obligation. We can start by
noting that, in the law at least, wrongness and obligation seem to be very
closely linked indeed. In fact, it is plausible to suppose that for A to be
legally obligated not to φ just is for it to be legally wrong for A to φ. I think

32
I realize that there are reasons to doubt that this is quite right. But I’ve tried to
phrase this claim broadly enough that it allows for a few different views on the precise
relation between wrongness and reasons. (What I have in mind here is the view that
Scanlon seems to suggest in his Wrongness and Reasons: A Re-examination, in Oxford
Studies in Metaethics, Vol. 2 (Russ Shafer-Landau, ed., 2007).) So it might be
that for something to be wrong is just for the reasons against it to outweigh the reasons
for it. Or it might be that there are special sorts of reasons, such as Darwall’s second-
person reasons, which can be themselves conclusive, and can make an action wrong even
when there are otherwise good reasons to perform it. See Stephen Darwall, The
Second-Person Standpoint (2006). But even there it makes sense to say that the
second-personal reasons defeat the other reasons.
33
Jonathan Dancy, Should We Pass the Buck?, 47 Royal Institute of Philosophy
Supplement 159, 166 (2000). The bracketed word “wrongess” actually replaces “rightness”
in the original, but the following sentence (“And the same is true of wrongness.”) ensures
that this is not a problem.

11
this is the underlying idea behind judicial statements to the effect that, for
example, “A trespass is a legal wrong,” 34 or “A breach of contract is in itself a
legal wrong,” 35 since we are legally obligated not to trespass and to perform
our contracts. The thought that wrongness is verdictive is equivalent to the
thought that

Wrongness as Reason-Giving (WAR): the fact that it is


wrong for A not to φ is itself a reason for A not to φ

is false. And, legally (i.e. from the legal point of view) there seems to be a
direct equivalence between “A is legally obligated not to φ” and “it is legally
wrong for A not to φ,” that is, they are expressions of the same fact. So we
can simply substitute the one for the other and, at least when it comes to legal
obligations, if WAR is false, we can conclude straightaway that OAR is false,
too.36 The verdictiveness of legal wrongness, then, just is the verdictiveness
of legal obligation.
We can see the same point – that legal obligation is verdictive – in a
different way if we return to the notion of peremptoriness. The idea, that a
legal directive not to φ is, in Hart’s words, “not intended to function within
the hearer’s deliberations as a reason for doing the act,” has I think got to be
the idea that legal directives are not contributory (or at least are not meant
to be contributory by the issuing authority). They are not considerations
which are supposed to be taken into account in determining whether or not
it would be wrong to φ; rather they are – to repeat myself – meant to settle

34
Shelvin-Carpenter Company v. State of Minnesota, 218 U.S. 57 (1910).
35
Allen v. Flood, [1898] A.C. 1, 96 (H.L.).
36
John Gardner, in his Wrongs and Faults, 59 Rev. of Metaphysics 95 (2005), might
be seen to give reason to doubt this argument, on the grounds that “wrong” sometimes
means “in breach of an obligation” but other times means “unjustified” (in the sense of not
supported by the best reasons). So, Gardner says, the defendant ship captain in Vincent
v. Lake Erie, 109 Minn 456 (1910) was wrong to keep his ship tied to the plaintiff’s dock
because he was trespassing, but not wrong to do so because to allow his ship to float free
would certainly have caused significant damage and so would keeping it fast was certainly
justified. There is really a tonne to say about this point and how I think it needs to be
addressed. But I don’t have room here. At this point all I can offer is that the second
sense of “wrong,” that Gardner is after is, at least in cases like Vincent, extra-legal. That
is, while the captain might have been morally or prudentially justified in keeping his ship
fast, he was legally wrong to do so exactly because he had a legal obligation not to.

12
the matter. They are overall verdicts, of the form ’φing is not to be done.’37
Legal obligation is verdictive, and therefore the fact that A is legally obligated
to φ cannot be a reason to φ.
Now here one might object that nobody is claiming that a legal obligation
is a reason for itself. Which of course is correct. But the considerations
suggesting that a legal obligation to φ is meant to settle the question of
whether or not to φ, and not to “function within the hearer’s deliberation as
a reason for” φing, suggest that that legal obligation to φ, as verdictive, is
based on some underlying considerations counting for and against φing. (A
Razian might call these the dependent reasons.38 ) Thus the legal obligation
is a conclusion or verdict on the question of whether or not one ought to φ.
And the natural thought is that that verdict, based as it is on the underlying
considerations, cannot then itself count as a new underlying consideration
on the same issue. To put it differently: the legal obligation to φ obtains
because of39 the reasons to φ and not to φ and thus cannot itself count as a
new reason to φ.40 So OAR is false.41

37
Here you might object that legal obligations can conflict with one another. For what
it’s worth I’m not sure that’s true (it depends, I think, on some questions about how
obligations are individuated that we don’t have the space to get into here). But if you
do take that view, you probably also accept that there is some sense of ‘what you are all
things considered legally obligated to do,’ which is determined by taking all of the relevant
legal obligations into account and deciding which one outweighs the others. That’s the
notion that I think of when I think of legal obligation – and I think that’s also the notion
that Hart is thinking of when he says that legal directives create peremptory reasons –
and that’s the notion that is verdictive.
38
Which, recall from Raz, The Morality of Freedom, supra note 1, are the reasons
that the obligation was meant to be based on, not the reasons it was actually based on.
39
I’m leaving this vague intentionally: just how the law goes about deciding, based on
the reasons to φ and not to φ, that there is a legal obligation to φ, is not something I have
space to account for here.
40
Putting the point this way might still be too strong. That some property is verdictive
is compatible with the thought that the property’s obtaining can be a reason, just not
a reasons of the sort that the verdict is based on. So that an action is wrong is not, if
wrongness is verdictive, a reason not to perform it. But it might be a reason of some other
sort, perhaps a reason to deliberate about whether to perform it in some special way. I
take it this is consistent with the suggestion made by Vanessa Carbonell in her De Dicto
Desires and morality as a fetish, Phil. Studies (online 2011). I say more about this
below.
41
Raz seems at times to have recognized some aspects of the problem of the reason-giving

13
But we need to be careful here, because it is easy to confuse two differ-
ent ideas. One – which has been the target of this section – is that it is in
the nature of the verdictive that verdicts cannot be reasons for the actions
to which they attach. Verdicts are based on some set of underlying con-
tributory considerations, where the sense of ‘based on’ that is appropriate
here is metaphysical rather than epistemological. That is, these underlying
considerations make it the case that the verdict applies, and this is true inde-
pendent of any agent’s going through the process of weighing the underlying
contributory reasons. The second idea – which I’ll discuss in the next sec-
tion – turns away from this metaphysical claim to the thought that verdicts,
and especially the verdicts embodied in legal directives and obligations, are
reached through a process of deliberation. There I’ll suggest that the nature
of deliberation is such that, once we reach a decision or verdict about some
action, we cannot then use that decision as a further reason for that action.

3 Legal Obligation and Deliberation


In the previous section I argued that OAR is false because legal obligation
is verdictive, and that therefore the argument that the law claims to give
reasons for action fails. Here I take a different tack. The beginning of the
boot-strapping argument is the observation that the law is a human creation:
legal obligations are created by humans to accomplish purposes through some

force of legal obligation. Raz of course argues that the fact that A has a legal obligation to
φ is a (protected) reason for A to φ. He is committed to the dependence thesis, according to
which authoritative directives “should be based . . . on reasons which apply to the subjects
of those directives” (see Joseph Raz, Ethics in the Public Domain 214 (1994)). But
if this is so, Raz notes, we open ourselves to the problematic possibility of double-counting
of reasons, (as he says in Raz, The Morality of Freedom, supra note 1 at 58), since
if we add the directive, which is based on the dependent reasons, to the balance of reasons
which already contains those dependent reasons, we appear to be counting some reasons
twice. This parallels a problem Dancy raises, when he says that if a verdict were allowed
to count as a reason for itself “we would be forced to reconsider the balance of reasons
once we had asserted [the verdict] in a way which would continue ad infinitum. Which is
ridiculous” (see Jonathan Dancy, Ethics without Principles 40 (2004)). For more
on this point in general see Christopher Essert, A Dilemma for Protected Reasons, 31 Law
and Philosophy 49 (2012).

14
process of reasoning and deliberation.42 But as Michael Bratman has shown,
the result of such a process of practical deliberation – a decision or an in-
tention or a plan or a policy – is not a reason to carry itself out. That is,
that A has decided to φ is not a reason for A to φ; that B has planned for
C to ψ is not a reason for C to ψ; that D and E have a policy of ξing is not
a reason for them to ξ. To hold otherwise, says Bratman, is to sanction an
impermissible form of bootstrapping.43
To put some meat on these bones, suppose I am trying to decide whether
or not to roast a chicken for dinner tonight. I weigh the reasons for pro
and contra and let’s say I decide to roast the chicken. My decision will be
characteristically associated with a set of reasons for me to then carry it
out:44 perhaps I buy the chicken, or turn the oven on, or get the butter out
of the fridge to soften, or open a bottle of chardonnay. Each of these actions
will have consequences in the world that will then ground reasons for me to
carry out the plan to roast the chicken. But it’s a much more difficult and
subtle question whether the fact of settling on that intention – just the fact
of making the decision to roast – itself creates a reason for me to do so.
Michael Bratman’s theory of intention gives us reason to doubt that it
does. Bratman argues that to see the intention to φ as creating a new reason
to φ would “sanction unacceptable forms of bootstrapping.” 45 We can see

42
Here you might reasonably object, No they aren’t! What about customary rules, for
example? I think that is a fair point, but as far as I can tell it’s not a problem for me,
but a problem for the Legal Rationalist. It seems to me that the idea that that law claims
to give reasons for action already presupposes that most laws are directives intentionally
given as laws, and that other cases such as customary laws are to be explained in derivative
ways. My argument here challenges the idea that the law claims to give reasons on its
home turf, as it were. The other cases are therefore not a problem for me. In any case,
while the underlying assumption of the argument I make in this section might not apply
to customary rules, the argument in the last section still applies since it rests on no such
assumption but rather on the features of obligation more generally.
43
The main arguments that I’ll rely on are found in Michael Bratman, Intention,
Plans, and Practical Reason, (1987). Clarifications and additions are can be found
in Bratman, Faces of Intention (1999), and Bratman, Structures of Agency
(2007).
44
Niko Kolodny emphasizes this point in his Aims as Reasons, in Reasons and Recog-
nition: Essays on the Philosophy of T.M. Scanlon (Samuel Freeman, Rahul Ku-
mar, and R. Jay Wallace, eds.„ 2011), 43, 50-53.
45
Bratman, Intention, Plans, and Practical Reason, supra note 43 at 24.

15
Bratman’s argument by considering my chicken in more detail. Assume for a
second that the reasons to roast it are actually outweighed by the reasons not
to do so and have salad instead (the amount of butter I put on the chicken
before I roast it, let’s say, is really just more than I ought to be eating).
Nevertheless, I choose to have chicken and form the intention to roast it.
Some time later I am faced with the question of whether to buy a chicken. If
my intention to roast a chicken is a reason to roast one, then it must also be a
reason to buy one (since chicken-buying is let’s assume a necessary means to
chicken-roasting). The reasons for and against buying the chicken, therefore,
should now take into account the reasons to roast the chicken, the reasons to
have salad instead, and, now, the reason given by my intention to roast the
chicken. It might be the case that these reasons now balance out in favour
of my buying the chicken. But buying the chicken is a means to roasting
the chicken and we know by hypothesis that I do not in fact have sufficient
reason to do that – the reasons to skip chicken and eat salad outweigh the
reasons to roast. But by making the (wrong) decision to roast a chicken, it
seems, it’s possible that I’ve made chicken-buying the all-things-considered
right option, the option supported by the most reasons. As Bratman says we
can see this even more clearly if we imagine that I decide to buy the chicken
the moment I decide to roast it. Here it’s clear that I’ve made the wrong
choice, but if we see the intention as a reason then by breaking the process
down into two steps it seems I can made the wrong option into the right one.
I’ll have more to say about the following point below but I do want to
flag it right now: notice that, in following Bratman and committing myself
to the view that my decision is not a reason to roast the chicken, I haven’t
ruled out the possibility that the decision has some other kind of practical
significance. That is, Bratman’s view is perfectly consistent with the thought
that the decision should affect how I deliberate about what to do in the future
(perhaps it even has some sort of peremptory status). There is of course much
more to say here, but this gives us the basic idea of Bratman’s claim.46
Now the analogy47 with legal obligation should be clear: the fact that

46
The full argument is in id. at 24-27.
47
Unfortunately I don’t have the space to get into this here but if Scott Shapiro’s Le-
gality, (2011) is correct, this is more than an analogy. According to Shapiro both laws
and intentions are Bratmanian plans, and so the story about impermissible bootstrapping
that prevents us from seeing intentions as reasons applies to the law.

16
an action is legally obligatory is a fact which, like intentions, arises based
on deliberation about the merits of actions.48 Raz’s view which I mentioned
above suggests this. But so does a plausible intuitive idea about how legal
directives come into being (or at least how the law claims that they do so).
Whether by legislation or by judicial creation, it seems, a legal obligation not
to φ is created based on consideration of or deliberation about the reasons pro
and contra φing. Judges, in handing down their decisions, and legislators,
in passing laws, are supposed to weigh the merits of what they’re doing and
(judges at least) are I think plausibly seen to be doing just that. If that’s the
case, though, to say that the decision made to create the obligation – the legal
directive – itself creates a new reason for performance, just in virtue of its
being issued and not because of any effects triggered by the creation (on which
more below, seems to license the same sort of impermissible bootstrapping
that Bratman argues against in the personal decision case. So the fact that
A is under a legal obligation to φ cannot itself be a reason to φ and OAR is
false.
Now I need to consider three objections. First, it might be objected that
there is a major disanalogy between the decision case, on the one hand, and
the case of legal obligations, on the other. The difference is this: a decision or
intention is something I form on my own, whereas a legal directive is created
by legal officials and meant to apply to citizens at large. These citizens had
(in general) no part in making that decision. So much is true, but why think
that the practical significance of a decision is any different when one person
makes it for another? What if I am making the chicken not for myself but
for my wife? Again, by hypothesis imagine that the reasons not to have the
chicken defeat the reasons to have it. If my decision were a reason, then it
could have the power to make the chicken the all-things-considered better
option for her. But that doesn’t make any sense, and I can’t see why things
would be different in this case than they were when I was just making the
chicken for myself. Perhaps in this case there are reasons for my wife to guide
her conduct according to my decision (maybe – just maybe – I am the better
cook?). If so this can be accomplished by seeing my decision as peremptory.

48
One might doubt that this is true, on the grounds that the law is corrupt or evil
or incompetent. But from the legal point of view – the point of view, remember, from
which the law is supposed to give us reasons – it most certainly holds true. The law must
represent itself as giving us legal obligations that make sense and come from somewhere.

17
The second objection is related because it focuses on the legal case espe-
cially. Here the objection accepts my argument and replies that bootstrap-
ping new reasons into place is, effectively, the whole point of legal directives.
That is, the law changes what we have reason to do just by its say-so,49 and
so to claim that the law can create new reasons just by its say-so is not a
bug but a feature. The problem with this objection is that it ignores the
thought – shared by Hart, Raz, Coleman, Shapiro, and many others – that
legal normativity is in some sense continuous with other forms of normativ-
ity. By this I don’t mean that legal normativity is a subset of, say, morality
(as Hart explicity denied by suggesting that legal obligations were somehow
sui generis). Instead I mean that if the law claims to impose obligations on
us as a legitimate authority, then its claims must be held up against the non-
legal facts of the matter as to what obligations are and how they work. As
a parallel, take Hart, who thought that legal obligations arose out of rules.
On this view, I think, Hart’s account must be responsive to facts about rules
that we might establish outside of the legal context.50 That is, there are fea-
tures that a rule must have to make it a rule. So if legal obligations are rules,
they too must have such features. The argument I’m trying to make in this
section claims that rules, to stick with Hart, are not themselves reasons for
their being carried out. So while the bare assertion that the law bootstraps
reasons might not seem problematic, the more plausible and helpful assertion
that the law could bootstrap reasons through rules must be wrong, since its
invocation of rules makes it responsive to a wider set of considerations about
the way that normative phenomena work.51

49
Or, again, at least it claims to do so.
50
And the fact that it was not – as the well-known objections in G.J. Warnock, The
Object of Morality (1971), suggest – was its major flaw.
51
Another objection or response to my argument can be found in Raz’s own account.
Above I mentioned the problem of double-counting that arises when a legal obligation,
based on some underlying dependent reasons to φ, is seen as a (protected) reason to φ.
To avoid double-counting, Raz has offered a different view, in which the legal directive
excludes all the reasons that were considered in its formation. Here, the directive is not
a new reason to φ but rather ‘sums up’ all the other reasons. If this is a plausible view,
it might be able to avoid the problem of bootstrapping by sidestepping the problematic
claim that a new reason is created, as the legal reason is not on this view really a new
reason but rather a summation of some already existing reasons. Unfortunately, this view
fails too: by excluding all of the reasons including those that count in favour of φing,
Raz makes it the case that it is not permissible or acceptable for citizens to φ for those

18
The third objection asks if the boot-strapping argument proves too much.
The essence of boot-strapping argument is that we cannot, simply by making
a decision to φ (say), give ourselves a reason to φ. Its sting can be lessened
by the thought that decisions can have practical significance without being
reasons themselves, perhaps in some second-order fashion.52 But why? Why
isn’t it the case that the boot-strapping argument also defeats the very idea
that our decisions (or laws) can have any effect on our practical deliberations
at all? The answer to this question is a long story that we can’t get into
in full here. But the basics are easy: there are good reasons for us to make
decisions and to stick to them. These are largely pragmatic considerations
to the effect that by treating our decisions as having some genuine practical
effect (that is, as changing how we ought to deliberate), we will tend to do
better in achieving our goals and ends and, more generally, in doing what we
have reason to do.53 The echoes with the Razian justification of authority
are obvious, and, consistent with that, we can see that what is at play here
is a distinction between reasons to deliberate in various ways and reasons to
act in particular ways in particular situations. The former are second-order
reasons which apply to us in general regardless of our particular goals but
rather because they help us achieve goals in general; the former depend on the
merits of the action in question and therefore a simple act of decisionmaking
(which cannot, after all, affect those merits54 ) cannot create them on the

very reasons that the law relied on in issuing the directive. But that is just implausible.
As Raz himself notes: “It is a truism that the law accepts conformity for other reasons
(convenience, prudence, etc.),” Raz, The Authority of Law, supra note 1 at 30. So
this objection fails, too. (For more on this see Essert, supra note 41.)
52
Bratman talks in terms of “framing reasons.” See Bratman, Intention, Plans, and
Practical Reason, supra note 43. The Razian idea of exclusionary reasons gets at the
same basic point: see the argument at the end of §6.
53
See Bratman, id. See also Bratman, Structures of Agency, supra note 43,
especially Chapter 13. A different take, which I think reaches the same type of conclusion
but from a different starting point, is Niko Kolodny’s. See, e.g. Niko Kolodny, Why
Be Rational? 114 MIND 509 (2005) or Niko Kolodny, How Does Coherence Matter, 107
Proceedings of the Aristotelian Society 229 (2007).
54
In the normal case. Of course there might be cases where our deliberations can have
an effect on the reasons that we have, say because we tend to do a better job of carrying
out certain tasks if we have thought about them in a particular way or some such thing.
But I hope it’s obvious that those reasons are merely derivative (in the sense I elaborate
below in §5) and are not going to do the sort of work that the Legal Rationalist needs.

19
spot. So there is a genuine distinction between reasons to carry out a given
decision (which the decision itself cannot create) and reasons to give decisions
special power in our practical deliberation (which arise in general because of
the way that decisions work and because of facts about our psychology); the
bootstrapping argument applies only to the former and not to latter.

4 Explaining the Intuitions Away


Let’s take stock. So far, I’ve offered two arguments that OAR,
the fact that A is obligated to φ is itself a reason for A to φ
is false. If either (or both) of these two arguments is sound, and OAR is
in fact false, then then the Legal Rationalist is wrong to argue that the law
claims to give reasons for action.55 But I have a problem. Or two, really:
the Explanatory Reasons Intuition and the Normative Reasons Intuition.
A really solid refutation of the Legal Rationalist’s argument would provide

55
Of course these are not the only arguments for the conclusion that the law does not
claim to give reason. Two other prominent arguments take as their primary target Joseph
Raz’s claim that the fact that A is under a legal obligation to φ is a first-order reason
to φ, protected by a second-order exclusionary reason which counts against complying
with some other reasons not to φ. Donald Regan argues that the fact that A is legally
obligated to φ is better seen not as an actual reason to φ but as an “indicator” reason,
which is roughly a reason to believe that the balance of reasons favours φing. See Donald
Regan, Authority and Value: Reflections on Raz’s Morality of Freedom, 62 S.C.L.Rev 995
(1988-1989) and Donald Regan, Reasons, Authority and the Meaning of “Obey”: Further
Thoughts on Raz and Obedience to Law, 3 Can. J. L. & Jurisprudence 3 (1990). Larry
Alexander argues that the law affects our practical reasoning primarily “through its effect
on people’s likely behaviour,” which is a form of reason-giving through triggering. See
Larry Alexander, Law and Exclusionary Reasons, 18 Philosophical Topics 5 (1990). I
don’t have space here to address these arguments to the extent that they deserve. Very
briefly, however, Regan’s argument is problematic because it seems to require that, when
A is under a legal obligation to φ, A has a reason to believe that he ought to φ. But
I don’t see why this is required - all that is required of A is that he φ. Alexander’s
argument I think fails because it denies the peremptory nature of legal obligation: he is
right to point to the importance of the sorts of triggering considerations that he does, but
he has no way to explain how these considerations can close the question of how to act in
the way that legal obligation does. Of course I don’t have the space to consider either of
these interesting accounts here; note however that their arguments are different from and
independent of mine.

20
something of an explanation for these intuitions – I said above that I would
explain them away in a manner that is consistent with a denial of OAR. The
rest of the paper will attempt to do so.
The Normative Reasons Intuition, roughly, says that the law is normative
and so must provide normative reasons. Since Hart pointed out the problem
with Austin’s view, legal philosophers have been at pains to avoid a view
about law according to which the law makes no normative difference to how
we ought to act.56 The natural way to make that argument is to rely on the
notion of a reason, the basic normative notion. And the notion does seem
to fit here: a reason to φ is a consideration that counts in favour of φing,
and contributes to the case for φ’s being permissible or justifiable or rational.
And the law does certainly seem to claim that its obligations work in just
that way. It seems normal to think that the law against trespass is a reason
for me not to walk on your lawn, a consideration that counts against my
doing so and renders it somehow less permissible or justifiable if I do.
Related but distinct is the Explanatory Reasons Intuition. People some-
times say things like the following: ‘Why are you driving so slowly?’ ‘I’m
obeying the limit.’ or ‘Why did you pay him that money?’ ‘I was performing
my contract.’ Here, the law seems to be playing the role not of favouring
actions, but of explaining them. That is, the existence of a legal obligation
is taken to be an explanatory reason rather than a normative reason. Ex-
planatory reasons and normative reasons are distinct notions. As it is usually
put, normative reasons count in favour of actions, and explanatory reasons
explain why agents acted as they did. To illustrate, let’s suppose that the
fact that I have this excellent bottle of chardonnay already chilled is a (nor-
mative) reason for me to roast a chicken for dinner (since the chardonnay
is excellent with roast chicken). If I roast the chicken in recognition of that
fact—motivated by my knowledge of it and guided by it my acting—then it
is the explanatory reason which explains my roasting the chicken (in addition
to being, as we supposed, a normative reason for me to do so). But suppose
I forget about the chardonnay or do not roast a chicken at all: in those cases,
the fact that I have it chilled is still a normative reason, but it is not an
explanatory reason since it does nothing to explain my action. Conversely,
suppose that I don’t have the chardonnay chilled but that I think I do, and

56
See e.g. Joseph Raz, The Morality of Freedom, supra note 1 at 48-53.

21
that, based on that erroneous belief I roast the chicken. The fact that it is
chilled cannot count in favour of my action, since it is not a fact at all; but
it does seem to explain my action in some way.
These types of considerations have lead philosophers to say a great deal
about the relationship between explanatory and normative reasons; too much,
really, to get into the details here.57 Instead, I will just highlight one widely-
accepted connection between normative and explanatory reasons, as it is the
one which is most important for our purposes here: for it to be the case that
A φs because of p, A must take it to be true that p is actually a (normative)
reason for her to φ.58 How does this matter to the argument? Like this: if
we tend much of the time to offer our legal obligations as explanations of
why we acted the way that we did—that i
How does this matter to the argument? Like this: if we tend much of
the time to offer our legal obligations as explanations of why we acted the
way that we did — that is, if we tend to offer our legal obligations as our

57
For general discussion of the difference see John Gardner and Timothy Macklem, Rea-
sons, supra note 26 or Jules Coleman, The Practice of Principle, supra note 3 at
71-72. For some different views about the nature of the differences between normative and
explanatory reasons, compare Michael Smith, The Moral Problem 94-98 (1994)
[arguing that the two types of reasons are different sorts of metaphysical entities: nor-
mative reasons are truths about the justifiability of actions whereas explanatory reasons
are psychological states of agents] and Jonathan Dancy, Practical Reality 98-137
(2000) [arguing that normative and explanatory reasons are the same type of thing]. See
also T.M. Scanlon, What We Owe to Each Other 33-55 (1998) and Joseph Raz,
From Normativity to Responsibility (2011). I should also note, to make things even
more complicated, that some philosophers divide what I’ve called ‘explanatory reasons’
further, into a broader class of explanatory reasons and a smaller class of ‘motivating
reasons,’ where, roughly, ‘explanatory reasons’ can include facts that explain things hav-
ing nothing to do with any agent or action (the high pressure system was the reason for
the sunny weather) and ‘motivating reasons’ is limited to explanations of the intentional
actions of agents.
58
As I say this is widely accepted. It isn’t universally accepted. Joseph Raz has recently
offered a prominent defense of this idea, calling it the normative/explanatory nexus, see
Joseph Raz, From Normativity to Responsibility 70 and passim (2011); for dis-
cussion of Raz’s view see Christopher Essert, From Raz’s Nexus to Legal Normativity, 25
Can. J. L. & Jurisprudence _ (forthcoming 2012). The idea is most famously associ-
ated with Bernard Williams’ defense of internalism about reasons in his essay “Internal and
External Reasons.” See Bernard Williams, Moral Luck 101-113 (1981). A similar
idea is defended in Mark Schroeder, Slaves of the Passions 10-15 (2007).

22
explanatory reasons — then it seems that we take our legal obligations to
be normative reasons. Our routine reference to the law in explaining our
action suggests that we routinely take law to justify our actions. To put it
differently: people take their legal obligations s reasons to perform. Hence the
Explanatory Reasons Intuition. In the remainder of the paper I will provide
explanations for these two intuitions which allow us to deny OAR. I’ll take
them in reverse order, and start with the Explanatory Reasons Intuition.

5 An Error-Theory of Legal Motivating Rea-


sons?
According to the Explanatory Reasons Intuition, people routinely refer to
the law in explaining their actions; and since an agent who φs because of
some consideration p must take p to be a reason for her to φ, this routine
explanation of action by reference to law suggests a widely-held view that
the law provides normative reasons.
Now of course it’s not the case that, just because an agent refers to some
consideration as a reason, it was actually a reason for her. That’s because we
can be wrong about our reasons: if I think that the door is locked then if you
ask me why I’m getting my keys out I’d say “because the door is locked and I
need to unlock it to go inside.” But if the door is unlocked, I have no reason
to get my keys out.59 So logically, the fact that we refer to legal obligations
as reasons does not entail that they are in fact reasons – we could just be
wrong about this. I say ‘logically,’ but I doubt that helps much: while in
any given case we could be confused or wrong about our reasons, the fact
that people almost universally refer to legal obligations as reasons seems to
call for a more robust explanation. We might call it an error theory. The
explanation has three parts.
The first part of the explanation requires us to note a distinction between
two different ways that the law could give reasons to its subjects. On the
one hand the law could give us reasons as I’ll say derivatively: the existence
of a legal obligation to φ is characteristically associated with a set of reasons
to φ grounded in the downstream effects or consequences of the creation of

59
A point clearly spelled out in Gardner and Macklem, Reasons, supra note 26.

23
the obligation. The examples are familiar: often there are sanctions for not
φing, sometimes φ is a salient solution to a coordination problem, perhaps
φ is required by some fair system of cooperation.60 Reasons created in these
ways are only derivatively given by the law because all the law does is, as
David Enoch puts it, trigger some reason for action that could be triggered
just as easily by a non-legal act. Take the sanction case: the reason given
by the sanction—that I want to avoid the pain, say, that would be caused
by not-φing—could just as easily by triggered by a gunman as by the law.
There is nothing distinctly legal about such a reason. That fact—that the
reason triggered by the law could just as easily be triggered by something
else—is the idea that the reason is given only derivatively.61
Derivative reason-giving is contrasted with direct reason-giving. Here the
idea is that the law gives reasons to its subjects not through any downstream
effects of the directive, but rather in some special way that is distinctive of
the directive’s imposition of a legal obligation. Where derivative reason-
giving involves the law’s triggering a normative consideration that could be
triggered by something else, direct reason-giving does not. Instead it is the
very act of the issuance of the directive itself that is supposed to ground
the reason. I think it is clear that the Legal Rationalist argues that the law
claims to give reasons directly rather than derivatively. The Legal Rationalist
thinks that the fact that A is under an obligation to φ itself constitutes a
reason to φ in a way that no other kind of fact could.
One might ask here what the distinction between direct and deriva-
tive reason-giving has to do with the more well-known distinction between
content-independent and content-dependent reasons.62 There are several dif-
ferent attempts in the literature to try to explain just what Hart had in mind

60
See, on sanctions, H.L.A. Hart, The Concept of Law (2nd ed. 1994), on conven-
tions, Leslie Green, Positivism and Conventionalism, 19 Can. J. L. & Jurisprudence
35 (1999), and on fairness, John Rawls, A Theory of Justice (1971).
61
The basic idea here comes from Enoch and the discussion of triggering in his really
brilliant Reason Giving and the Law, in Oxford Studies in the Philosophy of Law,
vol 1, 1 (Leslie Green and Brian Leiter, eds., 2011). The title ‘derivative’ I borrow from
Niko Kolodny who uses it for a related idea in a different context. See Niko Kolodny, Scan-
lon’s Investigation: The Relevance of Intent to Permissibility, 52 Analytic Philosophy
100, 101 (2011).
62
First made in Hart, Essays on Bentham (1982).

24
with this latter distinction,63 but as content-independence isn’t my interest
here I won’t choose one or offer my own. Instead I’ll just note that the basic
idea behind Hart’s distinction does seem to be the basic idea behind the one
I’ve drawn here: one the one hand are reasons which have to do in some way
with the merits of the action in question or its consequences (the content-
dependent reasons or those given derivatively) and on the other are reasons
which have to do instead with the bare fact that a legal directive was issued
(the content-independent reasons or those given directly). I’ll leave a full
consideration of this question to another day,64 and end the aside here.
Returning to the explanation of the Explanatory Reasons Intution, then,
we can ask what work this distinction between derivative and direct reason-
giving is doing. The Explanatory Reasons Intuition relies on the fact that
people tend to refer to the legal obligations all the time in the explanation of
their actions. The thought here is that much of the time when people refer
to their legal obligations as reasons, they are not referring to any reasons
created directly by law but instead are referring elliptically to derivative rea-
sons. Sanctions are again illustrative (and in fact play the role I have in mind
most frequently). When I say, “I don’t BitTorrent because it’s a violation
of the Copyright Act,” I am elliptically saying “I don’t BitTorrent because
I don’t want to have to pay a fine in the event that I am caught violating
the Copyright Act.” In my own casual conversational experience, for what
it’s worth, most people will give this second answer when pressed about the
first.65 Others, perhaps more civically minded, will give an explanation that

63
See, e.g., Leslie Green, Legal Obligation and Authority, in The Stanford
Encyclopedia of Philosophy (Spring 2010 Edition), Edward N. Zalta (ed.),
<http://plato.stanford.edu/archives/spr2010/entries/legal-obligation/>; John Gardner,
Legal Positivism: 5 ½ Myths, 48 Am. J. Juris. 199, 207-209 (2001); Scott Shapiro,
Authority, in The Oxford Handbook of Jurisprudence and Philosophy of Law
383, 389 (Jules Coleman and Scott Shapiro, eds., 2002); P. Markwick, Independent of
Content, 9 Legal Theory 43 (2003); Stefan Sciaraffa, On Content-Independent Reasons:
It’s Not in the Name, 28 Law and Philosophy 233 (2009).
64
Well, maybe not entirely: I think that both Sciaraffa and Gardner are onto something
in their focus not on the nature of the action in question but rather on the distinction
between, as Gardner puts it, the source and the merits of the norm (see Gardner, id., at
209). Notably, both Gardner and Sciaraffa suggest that one necessary step towards un-
derstanding this problem is abandoning Hart’s nomenclature (which Gardner says created
“confusion” and Sciaraffa calls a “misnomer,” Sciaraffa, id. at 238).
65
Again, for what it’s worth, I think this is the kind of thing people have in mind when

25
refers to some other of the reasons I mentioned above that are characteris-
tically associated with legal obligations: they’re worried about fairness, or
about upsetting the salience reasons which solve a coordination problem.
(These people say something like, “yeah, but what if everyone did that?”)
Each of the various kinds of derivative reason-giving I mentioned above
has in the past been considered and rejected as a complete account of the
reasons given by the law; and surely none of them is sufficient on its own.
But taken together these explanations are much more powerful, because in
many (or even most) cases, the existence of a legal obligation will trigger
a reason in one of those derivative ways. Elliptical reference to derivative
reasons created by the law (in one or another of the ways mentioned) can
explain the lion’s share of the phenomenon that gives rise to the Explanatory
Reasons Intuition.66
Beyond these reasons that tend characteristically to be triggered by the
imposition of a legal obligation, of course, there are often very good reasons
to perform any given legal obligation in any particular case. Some trespasses
are harmless but many are not, and we have good reason not to harm others’
property. Some breaches of contract are efficient but most are not, and
we have good reason not to create unnecessary economic costs. Violation of
many criminal prohibitions would be harmful to particular individuals. More
broadly, in many cases legal obligations are imposed to engender support for
some valuable regime, and some nonzero number of violations might lead to
the erosion of that regime. All of these concerns are contingent, but in many
cases they are the very reasons that were relied upon in the creation and
imposition of the legal obligation. They are, in Razian terms, the dependent
reasons. And when people refer to the law as a reason they might be, again,
elliptically referring to these dependent reasons in explaining or justifiying
their actions.
That is, when I say, “I am φing because I am legally obligated to φ” it
seems plausible that in fact I am giving a shorthand for “my legal obligation to
φ was imposed for and is based in part on some set of valid dependent reasons
to φ which justify my φing in this case.” While this might be rarer in normal
everyday conversation, I think that this is a very plausible explanation for

they say that the don’t perform some actions because they are “illegal.”
66
Cf. the “motivational generalization” discussed in Raz, Practical Reason and
Norms, supra note 1 at 156ff.

26
pronouncements by judges and other legal officials to the effect that we ought
to perform our legal obligations. These officials, remember, are elaborating
the legal point of view as to our actions, and so are espousing the view
that our obligations are actually based on some valid dependent reasons,
and that these reasons justify our actions.67 That’s the second part of the
explanation.68
The final part of the is related to the parallels between legal obligation
and legal wrongness that I drew in §2 above. T.M. Scanlon’s account of
the relationship between wrongness and reasons suggests that wrongness can
relate to reasons in two ways. First, an action is sometimes wrong in virtue
of the fact that there are conclusive reasons not to perform it (consistent
with the account of wrongness as verdictive I discussed above). Scanlon
also thinks that wrongness plays a second role, which “lies in shaping the
way I should think about the decision I face, and in determining which other
considerations I should take to be reasons.” 69 Here he explains in more detail:
In the most common kind of case in which wrongness plays a
shaping role, two kinds of reasons are in play, corresponding to
two kinds of ‘why?’ questions. There are first-order reasons such
as ‘it would hurt someone’ or ‘you promised,’ which explain why
a certain action would be wrong. In addition, there are higher-
order reasons, which might be offered in response to the question,
‘Why care about wrongness?’ or ‘Why accept that as they way
to think about what to do?’ The conclusion that an act would be

67
The officials need not actually think this - they could be taking a detached point of
view on the matter. On which see Raz, Practical Reason and Norms, supra note 1
as well as the discussions in Shapiro, Legality, (2011) and Coleman, The Architecture
of Jurisprudence, supra note 4.
68
There is a potentially helpful parallel here, I think, with the way that Scanlon, Nagel,
and others explain (or explain away) the intuition that our desires are reasons for action.
The thought there, as I take it, is that when I say “I φ because I wanted to,” I am elliptically
referring to some set of reasons on which I based by desire to φ. See Thomas Nagel,
The Possibility of Altruism (1970), 27-32, or T.M. Scanlon, What We Owe To
Each Other (1998), who writes, at 45, “When we say, for example, that a person has a
reason to call the travel agent because she wants to go to Chicago, we don’t mean merely
that she would enjoy Chicago, or that she thinks longingly of it and finds the thought of
going there tempting, but rather that she takers herself to have good reason to make the
trip.”
69
Scanlon, Wrongness and Reasons: A Re-Examination, supra note 32 at 7.

27
wrong claims that considerations of the first of these kinds count
decisively against it. So, considered in this role, wrongness is not
itself a reason-providing property.70

Extending Scanlon’s claim to legal obligation and then drawing on the con-
nection between legal wrongness and legal obligation, we get something like
this: the fact that I am under a legal obligation to φ is not itself a reason to φ
but is instead a reason that explains why certain other considerations count
decisively in favour of φing. To legal philosophers, the next step here will be
obvious: the fact of the legal obligation is not, as Scanlon says, a ’first-order
reason’. Instead it is a second-order reason. Second-order reasons are reasons
to deliberate about other reasons in particular ways. Raz’s use of the notion
(in particular under the guise of exclusionary reasons) is the most prominent
here, but there are other examples that attempt to generalize Raz’s view
towards the idea of shaping that Scanlon seems to have in mind here.71
This shaping provides an explanation (or an explaining away) of the fact
that people often seem to treat legal obligations as reasons that fits well
with the first two explanations I offered. Those first two explanations each
claimed that people use ‘I had a legal obligation to φ’ as a shorthand or
elliptical formulation of something else – sometimes for ‘I don’t want to be
sanctioned for not φing’ or some other characteristic reason triggered by the
law’s manipulation of the non-normative environment, other times for ‘the
legal obligation is based on valid reasons which justify my action.’ Here
again the idea is that ‘I had a legal obligation to φ’ is elliptical for something
more complicated. That more complicated thing this time is something like
this: ‘there are good second-order reasons to deliberate according to the
legal point of view according to which the reasons that made up the first two
parts of the explanation count conclusively in favour of φ.’ Between these
three phenomena I think we can explain all the situations in which people
seem to refer to their legal obligations as reasons and defuse the strength the
Explanatory Reasons Intuition as a reason to accept the Legal Rationalist’s
argument about law and reasons.

70
Id. at 10.
71
Notably Stephen Perry, Secon-Order Reasons, Uncertainty, and Legal Theory, 62 S.
Cal. L. Rev. 913 (1988).

28
6 Legal Normativity without Legal Reasons
Turn, then, to the Normative Reasons Intuition. For a consideration to be
a (normative) reason for some action is for that consideration to count in
favour of the action, and perhaps contribute to the case for the action’s
permissibility or justifiability or rationality. And the Legal Rationalist can
surely say that the law plays this kind of role in our lives (or at least claims
to do so): according to the law, that we are legally obligated to φ surely
counts in favour of φing and improves the case for φing (or at least worsens
the case for not φing). That is, the law surely claims to have a normative
effect on our lives and, reasons being the basic normative phenomenon, the
most obvious explanation of that effect is in terms of the law claiming to give
us reasons.
But we do not need to go this far. To say that legal obligations (or,
perhaps more broadly, the law) is normative, we need not commit ourselves
to the idea that each legal obligation is a reason for its own performance.
Instead, all we need to do is provide the resources to deny what we could call
the no normative difference thesis,72 according to which the fact that A has
a legal obligation to φ makes no normative difference as to whether or not A
ought to φ. As I noted above, Jules Coleman has himself provided a helpful
statement of what we need to explain here, under the guise of the Practical
Difference Thesis, which he defines as follows:

authoritative pronouncements must in principle be capable of


making a practical difference: a difference, that is, in the struc-
ture or content of deliberation and action.73

The statement of the Practical Difference Thesis presents the solution to our

72
The no normative difference thesis is related to – it’s at least a niece or nephew and
maybe a direct descendant of – Raz’s No Difference Thesis as discusse in Raz, The
Morality of Freedom, supra note 1 at 48-53, and Coleman’s Practical Difference
Thesis, discussed in Coleman, The Practice of Principle, supra note 3 as well as
in Jules Coleman, Incorporationism, Conventionality, and the Practical Difference Thesis,
supra note 5.
73
Coleman, Incorporationism, Conventionality, and the Practical Difference Thesis, id.
at 383.

29
problem.74 In order for our legal obligations (‘authoritative pronouncements’
in the official version) to make a practical difference – i.e. to be normative –
all we need is for them to make a difference in the structure or content of our
deliberations, or to make a difference with respect to what we have reason to
do. But, and again this is a familiar point for legal philosophers, there are
considerations which make a practical difference in our deliberations without
themselves being reasons for action: second-order reasons. It seems that
we have failed to appreciate the power of Raz’s insight into the notion of a
second-order reason. Raz’s breakthrough was to see that a consideration can
affect what an agent has reason to do in ways beyond being a reason for a
particular action. A second-order reason can change what an agent to whom
it applies to has reason to do. But once we see that a consideration can
affect what an agent has reason to do without being a reason for a particular
action, we can abandon the idea that an obligation, which certainly affects
what an agent has reason to do, must itself be a reason for that agent.
Presenting a full account here is outside my scope (and it’s related to
the points I took from Scanlon above where I said the same thing), but the
thought can be captured by modifying Raz’s account. According to Raz the
fact that A is under an obligation to φ is a reason for A to φ as well as a
second-order reason for A not to act on (at least) some other reasons not to
φ. If my arguments above are sound, though, we need to drop from Raz’s
account the idea that the obligation is itself a reason to φ. And so we are left
with the claim that it’s a second order (exclusionary) reason for A not to act
on some other reasons not to φ.75 Here’s the crucial point: on its own, this
is enough to rebut the no normative difference thesis. Suppose that, legal
obligation aside, the reasons not to φ outweigh the reasons to φ. If we put
the obligation into the picture, some of those reasons not to φ are excluded,
and now the non-excluded reasons to φ outweigh the reasons not to φ. So the
fact that A is under the obligation made a normative difference as to what
A ought to do.
A full account is required here and it is outside my scope to provide it

74
Coleman more recently put the point in the following way: “For my part, I think it
best to put the point as broadly and generally as possible. Law impacts what we have
reason to do.” See Coleman, The Architecture of Jurisprudence, supra note 4 at 78.
75
As argued in Essert, supra note 41.

30
in this paper.76 The important point is this: the desire to explain how law
can make a practical difference can be satisfied without resorting to OAR’s
commitment to the idea that the fact that an agent is obligated to φ is a
reason for her to φ. For my own part, I don’t think that the exclusionary
reason account is the way to go, but I use it because it is familiar here.77
The point is just that we can see that obligations can have the right kind of
practical effect without having to think that obligations themselves provide
reasons, as OAR requires. We don’t need to resort to OAR to deny the
no normative difference thesis and to account for the Normative Reasons
Intuition. And according to the arguments in §5, we also don’t need to
resort to OAR to account for the Explanatory Reasons Intuition. The Legal
Rationalist’s argument from OAR to the thought that the law claims to give
reasons to its subjects fails.

7 Legal Obligation without Legal Reasons


Perhaps however the Legal Rationalist’s thought that the law claims to give
reasons for action does not rely on OAR? I can think of one alternative route
that the Legal Rationalist might take. The thought would be that the law’s
claim is that a legal directive, ‘do not φ,’ in effect does two separate things.
Namely, it (1) creates an obligation not to φ and (2) creates a reason not to
φ. I have to confess that while this seems like a logical possibility I am not
at all sure how it would work.
Consider Jules Coleman’s analysis of the moral semantics of law, which he
takes to be a spelling-out of the notion of the legal point of view,78 suggests
that the law’s claim is just that its directive, ’do not φ’, can be redescribed

76
Because even with what I’ve got here, you might see potential objections, to the effect
that even second-order reasons cannot sufficeintly explain the idea that law claims to make
a normative difference. For an argument that they cannot, see Larry Alexander and
Emily Sherwin, The Rule of Rules: Morality, Rules, and the Dilemmas of
Law (2007), especially Chapter 4.
77
In part for the reasons offered by David Owens in Owens, Rationalism about Obligation,
16 European Journal of Philosophy 403 (2008), Shapiro, Authority, in Coleman
and Shapiro, supra note ??, and Christopher Essert, From Raz’s Nexus to Law, Cana-
dian Journal of Law and Jurisprudence (forthcoming).
78
As he says in Jules Coleman, Beyond the Separability Thesis: Moral Semantics and
the Methodology of Jurisprudence, 27 O.J.L.S. 581, 597n17 (2007).

31
as a (moral) obligation not to φ. According to the suggestion on the table,
however, the law’s claim to give reasons for actions to its subjects must be
understood as being the claim that it is the fact that the law imposed the
directive that is the reason not to φ. If the arguments I’ve proposed against
OAR are sound, though, it is impossible for the fact that an agent is under an
obligation to φ to be a reason for that agent to φ. So the proposal is that the
law claims that one single fact, the fact that it issued a directive ’do not φ’ is
both a reason not to φ and an obligation not to φ (which cannot be a reason
not to φ). So to say that the law claims both things is to necessarily say that
the law is making inconsistent claims. This is not a plausible suggestion.
What about if we take a step back and suggest that the thought that
the law gives reasons is distinct from the law’s claim to impose obligations,
such that the law could succeed in giving a reason even without imposing
an obligation? This proposal fares no better, because setting aside the law’s
claim to impose obligations requires setting aside the law’s claim to being a
legitimate authority and reduces its directives to the orders of a mere de facto
authority or a gunman. And such orders can create reasons only derivatively,
through triggering. While it’s clear that the law does in fact create reasons
in this way, it should be equally clear that this is not the sort of reason-giving
that interests legal philosophers.79

8 Where To Now?
I want to close by making some remarks on the implications of my argument.
Because while I do maintain that the Legal Rationalist is wrong to say that
the law claims to give reasons, in some important respects, my conclusions
here are modest: I have maintained that our legal obligations do make a
practical difference in how we ought to act, and that the law is normative
and that part of the task of explaining the nature of law is explaining that
normativity. So have we really made any progress? Sure. Three points: first,
and most generally, if as I said a part of the task of explaining the nature of
law is explaining the law’s normativity, then we’d better be sure that we are
talking about the right thing under the heading of ‘law’s normativity.’ So it’s
good to know that explaining law’s normativity means not explaining how

79
See Enoch Reason-Giving and the Law, supra note 61.

32
the law creates reasons but rather explaining how the law shapes the reasons
that we have, or perhaps creates second-order reasons. We can put the point
differently by returning to the idea that the law claims to be a legitimate
authority: my conclusion here tells us that understanding and evaluating
the law’s claim to authority is not a matter of understanding or evaluating
any claim of the law to give reasons to its subjects, since, without OAR the
argument for the law claiming to give reasons fails.
Second, and more specifically: Scott Shapiro’s planning theory of law,
which has I think a solid claim on being the most sophisticated and best
worked-out postivist theory of the nature of law out there, is committed to
my view. According to Shapiro, the fundamental normative structure of the
legal system rests on plans. And according to Bratman, plans are not reasons.
Indeed, Bratman’s theory of planning developed in part as a way to explain
how it is that intentions and decisions can make a practical difference in
our lives while maintaining that they are not themselves reasons for carrying
themselves out. So if I am wrong, OAR is correct, and legal obligations are
reasons for performance, that is a reason to doubt Shapiro’s theory.
Thirdly, and even more specifically: recently John Gardner and Ernest
Weinrib, among others, have been engaged in a debate about how to un-
derstand the relationship between A’s tort law obligation to, say, take due
care, and the remedial obligation that arises when A fails to take due care
and injures B.80 If we want to understand this relationship between these
two related obligations in terms of reasons, as both Gardner and Weinrib
sometimes suggest, we had better be sure that we have a clear idea of the
relationship between reasons and obligations in the first place.

80
See Gardner, supra note 12 and Ernest Weinrib, Civil Recourse and Corrective Justice,
Fla. St. L. Rev. (forthcoming).

33