Raz’s Critical Jurisprudence
In the last blog we looked at Finnis’ account of the common good. In this blog, we will look at some of Raz’s ideas drawn from The Morality of Freedom (Oxford: Clarendon, 1996). When you have studied Raz’s jurisprudence, it is worth returning to this book. The important themes are only touched upon in the study guide. Once one connects these two themes together, one gets a much stronger sense of the whole point of Raz’s work. Moreover, one begins to appreciate that there are many themes in common between Raz and Finnis. The old, simplistic divisions in which jurisprudence is presented start to break down. The subject becomes a much more primal examination of the basic terms of a good life.
Raz’s starting point in The Morality of Freedom is that of the “value” of “freedom” and “personal autonomy” (Raz 1996, 265). Freedom and personal autonomy are intimately related as people can only engage in expressions of their autonomy and ‘creat[e] their own lives” if they have the freedom to do so. “[S]elf creation” is a way of thinking about the autonomous person as a (part) author of his own life.” This idea can be developed by focusing on the well-being of individuals. Well-being relates to authorship because it allows an individual to assess from his or her own points of view the extent to which they have been “good or successful” in achieving their goals. This involves some interesting questions.
Whether or not one has been successful or not in achieving one’s goals depends on where one ‘is’ in one’s life- and- moreover- can only be properly assessed against a social backdrop where, at least in part, those goals are defined. The question of the assessment of goals involves a clear sense of self; a sense of a life plan, and the critical intelligence and emotional maturity to study, understand and criticise one’s actions. However, this is not meant to suggest “the regimented, compulsive person who decides when young what life to have and spends the rest of it living it out according to plan” (Raz 1996, 371)- rather, a kind of intelligent reflexivity- an intelligent focus on one’s way of living that allows one to follow “diverse and heterogeneous” pursuits (ibid). Thus, the ideal of “the autonomous life” is suggested “not by what there is in it but by how it came to be”; [and] one must be “sensitive to his past.” (Raz 1996, 385)
We can make one more point in passing here: the autonomous life requires “adequate options available for [a person] to choose from.” (Raz 1996, 373) Whilst this means that an individual must be free of coercion, and have adequate mental ability to make choices, it requires a great deal more. This is also perhaps another aspect of the need for a ‘clear focus’ on the self- but- in this context such a concern could also appear somewhat solipsistic and self-interested. How does Raz deal with this criticism? We need to think about the idea of value. It is necessary to accept that certain choices are more valuable than others as they enhance personal well-being. One needs to make choices: thus, a “livestock farmer busily minding his farm” has made a choice about his form of life that enhances his well-being in the way that a gambler (even a successful one) does not (Raz 1996, 298-9).
How can this argument be defended? One needs to understand the “social forms” or modes of behaviour that are “widely [socially] practiced”. For a social practice to constitute a worthwhile pursuit of well-being it must offer a “comprehensive goal”- or- it must have “internal richness and complexity” (Raz 1996, 310). The practices that define social forms are broad enough to run from (say) becoming a lawyer, determining to be a political militant, to raising a family. We can appreciate that one could only commit oneself to one or other (or some combination) if the relevant social institutions exist; such practices also involve ongoing ‘habituation’- interaction with others- ways of learning from experiences, becoming more competent at one’s chosen pursuit. It is worth remembering that the social forms argument is not inherently conservative. Social forms change: thus, one could choose to raise one’s family communally – rather than in a nuclear family. To the extent that there are ‘alternative’ social forms, this would be a legitimate choice. However, a little more shovel work is necessary to show that this account of well-being is not simply one of the ‘atomised’ individuals.
How is it possible to balance the well-being of one person with that of another? If the pursuit of individual well-being is simply a form of selfish egotism, there would presumably always be an irresolvable tension between competing individual’s attempts to assert their self-interest. To deal with this criticism, we need to distinguish between self-interest and well-being. One can certainly act from self-interest, and assert one’s well-being as more important than that of another, but it does not follow that acting in self-interest is the best way of enhancing one’s well-being. Well-being becomes morally important to the extent it is mediated by social practices. Whilst it is entirely possible that one’s pursuit of well-being could come into tension with that of others, it does not follow that this is always inescapably so, especially if one is engaged in a worthwhile social practice with others. Thus, it may be the case that – in, for example, reciprocal child care arrangements- there are ways of acting that are moral to the extent that they satisfy self-interest and well-being: the interests of the self and the other are coordinated: it is possible to “serves oneself” and others at the same time (Raz 1996, 319). Thus, the moral person is an individual embedded within a community to the extent that “it is impossible to separate his personal well-being from his moral concerns” (Raz 1996, 320).
Raz also sketches out the broader context of this account of the social being. To be the author of the self is to respond to the flux of modern experience, to cope with the challenges, the breakdown of old patterns and the bewildering but exhilarating progress of social and economic change. Indeed, autonomy is not about “unity”, but the pursuit of “heterogeneous” goals. So, an “ autonomous…person must not only be given a choice but he must be given an adequate range of choices.” (Raz 1996, 373). These are difficult issues, but, we can examine the guidelines that allow us to determine the basic terms of the range of choice that should be available. One unacceptable compromise of autonomy is that “we should have no influence over the choice of our occupation or of our friends.” (Raz 1986, 375) As far as out argument is concerned, the other central reference point would be the need for independence—an autonomous person cannot be “subject the will of one person to that of another.” We will leave to one side for the moment this understanding of coercion- and continue our sketch. The key concern is that an autonomous person must be able to “aim at the good”. This is to say that one needs to be able to make choices between equally compelling and valuable ends. An earlier theme also returns. Genuine choice requires self-knowledge- an active engagement with the choices that one has been offered; a person who “drifts through life unawares is not leading an autonomous life” (Raz 1996, 382). The drifter has fallen into self-deception and lost any sense of his or her “true situation”. This kind of personality failure shows itself when the drifter becomes ‘surprised’ – at a point when it is too late – about his/her failure to commit and act on choices made; the drifter is someone like Philip Larkin’s Mr Bleaney (in the poem of the same name); but, unlike Mr Bleaney, Raz’s drifter may have had “deeply felt aims” which have not been achieved. To quote Larkin again, the drifter has been ‘pushed to the side’ of his own life: “[t]he life he has is not his own” (Raz 1996, 382).
If we read this account of autonomy and the search for the good life alongside that of John Finnis, we will see that both authors are concerned with questions of what makes life worthwhile. Clearly they approach this difficult concern is different ways, but, there are some interesting overlaps; not least the concern with the ‘examination’ of the self- and- the wider question of the point of law. Whilst Raz and Finnis produce different accounts of the law- both would perhaps agree on the general point that one needs to study the subject in the much broader context that their work opens up. Whether one wants to call this philosophy is a moot point. The real issue is to appreciate that jurisprudence is not the dusty study of obscure, academic debates, but perhaps as close as you can get on a law degree to asking a set of difficult existential questions about the meaning of the good life: a life worth living.
This blog was written by Professor Adam Gearey, Law Lecturer at Birkbeck, University of London.