Between Authority and Interpretation

PAULA GAIDO

Curitiba

Congreso; III Congresso Internacional de Direito Constitucional e Filosofia Política; 2017

Universidad Federal do Parana, Universidad do Minas Gerais

Joseph Raz?s calls our attention toward the conceptual link between legal norms and reasons for action. We cannot understand what legal norms are without understanding their role in our practical reasoning as protected reasons for action. In this paper, I want to challenge some of Raz?s theses on legal reasoning, with his theory of law as background. Raz argues that legal interpretation and judicial adjudication are both fundamentally open to moral argument, where the voice of the legitimate legal authority is just a first voice. I think this idea clashes with the main theses that frame his theory of law. My argument is that Raz argues that even when law is effectively authoritative and settled (it is not indeterminate), judges have the power to change it based on certain reasons (excluded for the citizen, such as justice) and that, sometimes, they must change it (if the balance of reasons to change the law defeats the reasons to leave it as it is). My thesis is that this power of judges to review the law based on reasons that are excluded for citizens is incompatible with the authority of law, according to his theory of law. Or the law is authoritative and judges cannot change it if it is determined. Or judges can change it but then it is not authoritative.