with the effective agency of individuals and are built on a conception of human well-being with integrity through the exercise of autonomy. What is morally prohibited is therefore interference with humans’ effective agency and actions not supported by a conception of well-being with integrity. My venture into moral theory was motivated by the non-positivist belief that norms, to possess normative force, cannot sanction what is morally prohibited. Now that we have a clearer picture of what is morally prohibited we can investigate with greater precision that claim and answer the other wills question.
The other wills question asks how and why should a group of subjects act on the norms enacted by a group of officials. I advance the following answer which I will defend in greater detail. A group of subjects can act on the norms of the officials, and justifiably do so, when the norms are the product of the necessary mediation of the personalities of those subjects with the purpose of maintaining a community of autonomous individuals. The pre-condition of maintaining the community of
autonomous individuals is the recognition and protection of their effective agency. It follows that it
175Remember that effective agency does not coincide with any specific action. Rather effective agency, as the unification of voluntariness and purposiveness, enables specific action. Therefore respect for autonomy does not require non-interference with specific actions. Indeed, interference with specific actions (e.g. theft or homicide) might indeed flow from a good reason for action.
176Bernard Williams separately criticises, perhaps unfairly, each tradition in B. Williams, Ethics and the Limits of Philosophy (Harvard University Press 1985), chapters 3 and 4.
177See par 5.1 below for a more detailed discussion of why the neo-Thomist and neo-Kantian tradition have to be amalgamated.
is by recognising and protecting the effective agency of their subjects and mediating their personalities that officials provide norms possessing normative force for their subjects. This all sounds too mysterious and complicated. However, it is by unravelling this complexity that we discover that the separation thesis is extremely misleading: legally valid norms can be immoral, but only in certain ways. Norms that emanate from officials who do not recognise that their addressees are autonomous beings who necessarily make a claim to retain their effective agency cannot be legally valid. They cannot be legally valid simply because these norms cannot have the necessary normative force for subjects. I proceed to expand on the elements of this answer to the other wills question.
In the argument of community I said that norms, to be legally valid, necessarily need to possess normative force for their subjects, otherwise we fall into the paradox of effectiveness that Hart’s theory of legal validity suffered from. The argument also established that Fuller was right and that officials and subjects are engaged in a common enterprise, that of subjecting human conduct to the governance of norms, which necessitates a requirement of reciprocity. But, one should ask, what does this requirement of reciprocity consist in? It consists in the following: both officials and subjects are members of a community of autonomous individuals. This should not sound mysterious at all. In fact legal systems are made of human beings. We already know that human beings, differently from other animals, possess a will through which they are capable of guiding their actions. To do so they develop reasons and principles and consolidate their personalities. But, one might ask, if legal systems are made of autonomous beings, then why should a group of those beings, i.e. the subjects, curtail their autonomy and act according to what another group of human beings, i.e. the officials, tell them to do through norms? While advancing the other wills question I proposed two possibilities for this question. One was the threat of sanctions and the other was authority. I casted doubts on the previous and said that authority would be workable if it can be shown to be legitimate.
Wolff argued that the authority of the state (which for present purposes we can assume to coincide with the authority of the officials178) can never be held legitimate because it conflicts with the moral duty of individuals to be autonomous. In his words:
“The moral condition demands that we acknowledge responsibility and achieve autonomy wherever and whenever possible. Sometimes this involves moral deliberation and reflection, at other times,
178The authority of the state and the authority of legal officials do not always coincide. We can say that the latter category is always included in the former but not always the other way round. Positivists, as I have shown, argue that the relevant legal officials are law-applying institutions (courts, tribunals, etc.). Necessarily law-applying institutions are a part of the state’s machinery; however, they are not always the only political institutions. Think for example of law-making institutions like parliament or law-enforcing institutions like the police.
the gathering of special, even technical, information […] The defining mark of the state is authority, the right to rule. The primary obligation of man is autonomy, the refusal to be ruled. It would seem, then, that there can be no resolution of the conflict between the authority of the individual and the putative authority of the state. Insofar as a man fulfils his obligation to make himself the author of his decisions, he will resist the state’s claim to have authority over him.”179
It is important to stress that Wolff does not think that this insoluble conflict between authority and autonomy means that an individual should never do as he is told; instead he should never do as he is told only because he has been told to do so. He should only do as he is told when, by deliberation, he concludes that it is the right thing to do. If Wolff is right then, on reflection, the norms enacted by the officials cannot possess normative force given by authority, simply because authority can never be legitimate as it is immoral. But Wolff is wrong, and fundamentally so. Morality does not demand of us to exercise our autonomy; it is the exercise of autonomy that makes morality possible. Moral claims demand that we exercise our autonomy in a correct way. Let me explain.
In my discussion of what morality consists in, I said that we could not have any conception of morality without the idea of the responsibility of our actions. Human beings can determine the way they act because they are in possession of a will through which they can mediate their natural impulses and act on reasons. I also said that human beings can act autonomously but do not always do so; certain human beings, children and the mentally incompetent for example, are not endowed with working or well developed wills. So we cannot attribute any moral responsibility to them. It is the presence of a will and our autonomy that makes morality possible. Does it follow that we are under a moral obligation to always exercise our autonomy? The question does not make much sense. If it is answered in the positive it has some drastic effects. We would have a moral obligation not to sleep and to engage in sophisticated reasoning under periods of emergency. Even children and the mentally incompetent could be said to be under the moral obligation of exercising their autonomy to the extent they are capable of it. Again, this does not make much sense. Morality is not about exercising autonomy; rather it is about how our autonomy is to be exercised. I said that morally prohibited actions are those that are not completely reasonable, those that involve a miscalculation of the consequences of our actions or that are not supported by a conception of human well-being with integrity. If authority can help us to engage in the correct calculation of what are good reasons for actions, then it cannot be immoral. Morality does not care whether we reach the good reasons independently from other people, it cares that we reach the good reasons. So Wolff is wrong when he says that our moral duty is to be autonomous individuals.
179Wolff, n 137, 17.
My conclusion is not far from Raz’s who tells us, through the service conception, when an authority can be held to be legitimate. He asks: “how can it be consistent with one’s standing as a person to be subject to the will of another in the way one is when subject to the authority of another?” He replies:
“The suggestion of the service conception is that the moral question is answered when two
conditions are met, and regarding matters with respect to which they are met: First, that the subject would better conform to reasons that apply to him anyway (that is, to reasons other than the directives of the authority) if he intends to be guided by the authority's directives than if he does not (I will refer to it as the normal justification thesis or condition). Second, that the matters regarding which the first condition is met are such that with respect to them it is better to conform to reason than to decide for oneself, unaided by authority (I will refer to it as the independence condition).”180 So these two conditions tell us that an authority is legitimate only when we reach better reasons overall by complying with authoritative utterances rather than engaging in the reasoning process ourselves (the normal justification thesis). This is consistent with what I said earlier. Morality demands that we reach the correct decision, so if complying with authoritative utterances can help us do that, the authority will be morally legitimate.
From the above it appears that the legitimate authority of norms enacted by the officials is a real possibility. However, the service conception cannot provide a satisfactory legitimisation test necessary for legal norms. This is so because, under the service conception, the officials would almost never be able to emanate norms possessing normative force for their subjects. Consider the following. The service conception says, among other things, that authoritative norms enacted by the officials are justified when they provide subjects with morally good reasons for action. I have said that morally good reasons for actions are those that follow from calculating the consequences of our actions and choosing those consequences that follow from a conception of human well-being with integrity (i.e. a conception of well-being which cannot be criticised from the perspective of any of the basic goods) . If authoritative utterances are thus to be justified then authorities must know, better than their subjects, what the possible consequences of the actions of their subjects are and what conception of human well-being with integrity supports those actions. But authorities can hardly know this better than their subjects, because the goodness of reasons depends on the situation of those that are engaged in a process of reasoning. A reminder of a reasoning process will suffice to prove the point.
180J. Raz, Between Authority and Interpretation (OUP 2009), 136-137.
Remember the example of an individual who decides to go to church every Sunday to deepen his relationship with a super-human personality. He produces a recurring and general reason to this effect which I called a principle. However, principles are only good generally not particularly. In fact, having broken his leg and having been advised to stay in bed for a month, he re-engages in a process of reasoning and decides that he cannot act on his principle of going to church every Sunday because the circumstances that produced it have change, i.e. he does not have the power of going to church as he is bed-ridden. So, ultimately, good reasons for actions are circumstances-dependent. If this is true, norms enacted by officials cannot produce good reasons for action for their subjects unless they can predict and accommodate all the relevant circumstances of their subjects. But this is hardly plausible. It appears even more implausible when we consider that the officials have to be capable of predicting and accommodating all the possible circumstances of all their subjects and enact norms that can accommodate all of them at the same time. This would require divine predictive and norm-drafting abilities. The best officials could do is to produce norms that work well as principles. But, as I have said, good principles do not produce good reasons without accommodation to the
circumstances.
So the service conception cannot explain the normative force of the norms enacted by the officials.
Actually, endorsement of it will lead us to the idea that norms enacted by the officials will only rarely be justifiable because incapable of providing good reasons. But could we not just say that norms enacted by the officials will be legitimate, hence legally valid, if they are capable of providing good principles for their subjects? This appears as a workable solution. There would obviously be a compromise. The officials’ norms will not always be completely reasonable, i.e. they would not always comply with what morally ought to be done, as they would not necessarily match the circumstances of their subjects. However, they would provide their subjects with general reasons, i.e. principles, to guide their conduct. But, even if officials’ norms could be considered as principles for their subjects, we would still have to understand what justifies them. Obviously, the service conception would no longer be workable as it is concerned with reasons and not principles. So we need to know what could justify the practice of taking norms enacted by officials as principles. I will suggest that it is the idea of maintaining a community of autonomous individuals who necessarily make a claim to retain their effective agency that justifies this practice.