In Memoriam: Joseph Raz (1939 – 2022)

Joseph Raz, who died this week, will rightly be remembered as a giant in the fields of jurisprudence and philosophy. The fact that I (MD) had only the fleeting conversations with him on the few occasions on which I met him, is mostly because of how awestruck I was. But even in those brief exchanges, Raz was always kind, and unfailingly generous with his attention. This generosity also struck me (LL) when I recently dared sending him only the introduction to my forthcoming book that draws on some of his thoughts. His response was appropriately conditional and typically modest, yet against all my expectations, it was encouraging and very kind. That generosity of spirit was especially in evidence in these last few years. When Covid moved almost all academic conferences, workshops, and seminars online, Raz frequently surprised and delighted audiences who might never have otherwise had the occasion to see him, with his presence even in relatively low-key gatherings featuring papers by graduate student or early career researchers. Indeed, we would wager that the unexpected appearance of his name on a square on a computer screen was directly correlated to many sharp intakes of breath, and we know that when that name dissolved into the image of his face – impressive beard, wire-rimmed spectacles, furrowed brow, looking slightly to the left of the camera – Twitter lit up with people having fanboy and fangirl moments. But more importantly, as with all other seminars and workshops, when Raz attended, he attended. He had read pre-circulated papers carefully, and without fussing about with polite platitudes and boilerplate compliments, asked searching questions that showed that he took the presenter – whether senior professor, or doctoral student – seriously as an intellectual interlocutor. There could be no greater compliment for the presenter, even as they were being eviscerated by Raz’s razor-sharp intellect.

Although Raz is most known for his arguments on legal positivism, and the authority of the law and its relationship with morality, his ideas also had a tremendous impact on the theory of criminal law; and their impact on evidence law is yet to be unfolded. We are certain that readers will be able to identify several echoes of Raz’s ideas in various domains of criminal and evidence law theory, but in this short post, we will focus on the impact of his work on areas of criminal and evidence law that are of particular interest to us.

Raz’s own writings did not focus on the theory of criminal or evidence law, but he cast such a long shadow with his work that it should not surprise us that Raz has influenced the development of this field of legal philosophy as well.

Raz’s PhD students – a list of ‘Raztafarians’ so star-studded and accomplished that it, by itself, is evidence of Raz’s incredible legacy – include John Gardner and Andrew Simester, whose work on criminal law theory has defined the field. Both Gardner and Simester constructed their theories of criminal law upon the foundation of arguments made in Raz’s work on the theory of norms and its connection to the philosophy of practical reason (Practical Reason and Norms, OUP 1975). Raz argued that we refer to reasons in explaining, evaluating, and guiding people’s behaviour, and since the criminal law does at least two of these things – it guides and evaluates behaviour – both Gardner and Simester placed Raz’s exposition of how reasons work at the centre of their arguments about what the criminal law tells us to do, and how it judges our conduct.

Raz famously argued that

…reasons are used to guide behaviour, and people are to be guided by what is the case, not what they believe to be the case… Only reasons understood as facts are normatively significant; only they determine what ought to be done. To decide what we should do, we must find what the world is like, and not what our thoughts are like. The other notion of reasons is relevant exclusively for explanatory purposes and not at all for guiding purposes.[1]

Now, of course, Raz was aware that to be guided by what is the case, a person must come to believe that it is the case. Still, he insisted that it is the fact, and not the agent’s belief in it, that should guide her, and that is a reason for action. The agent’s unawareness of the facts does not mean that the facts are no reason for her to perform some action – the reasons exist, even though the agent is unaware of them. For Raz, it was clear that

If reasons are to serve for guiding and evaluating behaviour then not all reasons are beliefs. It may seem that reasons which are neither the beliefs nor the desires of the agent cannot be used in explaining his behaviour, but this is a mistake. The explanation depends on his belief that the reasons obtain, but again this does not establish that his belief is the reason. All it shows is that this type of explanation of a person’s behaviour turns on his belief that certain reasons apply rather than on the fact that they do apply. We can understand his behaviour even if we think he was wrong in believing that there were good reasons for him to do what he did.[2]

It is no exaggeration to state that this argument is one of the foundations of both Gardner’s and Simester’s theories of the criminal law (and those of many others beside). One of the strengths of this argument is that it neatly explains why we criminalise bad outcomes rather than (mere) bad intentions. It is also explicitly or implicitly the basis for the insistence of most criminal law theorists that a justification is only available to a defendant if, at a minimum, there existed undefeated reasons to do as she did. The thought is that only reasons understood as fact can actually justify an agent’s action; reasons understood as beliefs, by themselves, can do no more than excuse the action. The intuitive appeal of deploying Raz’s argument in this latter way is undeniable, and indeed it is no exaggeration to say that this is one of the few claims about the structure of criminal law justifications on which there is fairly widespread agreement.

While I (MD) personally doubt that Raz’s argument supports this claim about the structure of justifications in the criminal law, this is not the time or place to air those doubts. It is a testament to the immensity and durability of the intellectual empire that Joseph Raz built, that there is little doubt that there will be plenty of other times or places to continue to engage critically with his body of work. For the here and now, all we want to do is to highlight how Raz’s ideas show up in all sorts of unexpected places in the theory of law, and how they have worked their way into the very fabric of legal theory.

Another example of this is in the theory of evidence law. Raz’s work has immeasurable potential in this fast-developing field of inquiry. Raz has argued that our beliefs and other thoughts are guided not only by epistemic reasons, but also by practical reasons; and one such reason is the reason to respect persons for who they are, and further as ends in themselves:

There is no general reason to know, or believe, that what is of value is of value, any more than there is a general reason to know or believe in all true propositions. No reason for me to believe that there is in Kazakhstan a good statute of the Buddha, even though there is such a statute there. But there is a general reason that if we think of an object which is of value, we should think of it in ways consistent with its value. This applies to our fantasies, imaginings, wishes, emotions, as well as to our plain beliefs. For example, despising someone as worthless, or mean, when he is in fact generous and kind, is having an emotion that is inconsistent with his value, and inconsistent with the general reason I have in mind here: the reason that in our thoughts we regard objects in ways consistent with the value they in fact have.[3]  

And elsewhere:

People have much that is good and much that is bad about them, and we have reason to respect them for whatever is good, and lack respect for them for whatever is bad. But there is one reason for respect that they all share: they are all persons … And as persons, they all deserve the same respect, that which is due to persons … The respect due to them is among the foundations of morality.[4]

Evidence law scholars have been grappling with questions about the relevance of rational beliefs for practical decision-making, given that practical decisions can sometimes be made more accurately without rational beliefs. Yet if our beliefs about persons, and our lack thereof, are guided by practical reasons of respect as Raz suggests, answers to these questions begin to unfold. Practical reasons of respect might require that whenever we engage with persons within (and outside) the legal system, our beliefs (or the lack thereof) about them should be consistent with the inherent value of persons and with the value of their actions or inactions. Moreover, if that is the case, then the connection between epistemic reasoning and practical reasoning may be closer than is often assumed. Raz’s work can thus provide a key for dissolving some of the most fundamental deadlocks in the theory of evidence law. Once again, Raz’s rigorous examination of the bare bones of legal theory sets us up to reap dividends in unexpected areas of study.

In celebrating Raz’s rich life, we join with the plethora of students, academics, lawyers, and judges around the world who have learned so much from him. Like many other, we want to remember and pay our respects to both, Joseph Raz, the intellectual monolith, and Joseph Raz, the generous and intellectually curious interlocutor and mentor.

Mark Dsouza and Liat Levanon,

Editors, Criminal Justice Theory Blog

[1]  J Raz, Practical Reason and Norms (OUP 1975/1999) 15-18.

[2]  Raz, Practical Reason and Norms 17.

[3] J Raz, Value, Respect and Attachment (CUP 2001) 161-62 (emphasis added).

[4] J Raz, ‘On Respect, Authority and Neutrality: A Response’ (2010) 120 Ethics 279, 284–85.

Published by editorscjtblog

CJT Blog is jointly run by Dr Liat Levanon, Dickson Poon School of Law, King’s College, London and Dr Mark Dsouza, Faculty of Laws, University College, London.

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