In his ‘Authority, Law and Morality’[1] Joseph Raz discussed the notion of law’s authoritativeness. According to Raz (extremely briefly), the law operates as a particular type of reason for people to act, namely, a pre-emptive reason. This means that legal directives displace other reasons that people might have to motivate their action. This displacement takes place because an institutional authority has issued such pre-emptive reason (of course Raz also developed an elaborate justification regarding how a person -or a body- can be acknowledged as having authority, but its exposure exceeds the purposes of this post).
We can understand better this pre-emptive reason with the following example: I might have different reasons for not paying for the coffee that I am having while writing this post. I might want to use this money to buy another thing, or maybe to save it, and so on. However, since the law states that every time that a purchase has been made the buyer has to pay the price (and I am the buyer), I am legally obliged to pay. In this sense, law motivates my action giving me an exclusionary reason; the law excludes any other non-legal reason for not paying my coffee.
I think Raz’s account of law’s authoritativeness can help us to understand how a lawyer thinks when faced against the client’s questions. It is common that clients ask lawyers what is the law of a specific area: How does the jurisdiction deal with traffic accidents? Which are the conditions to lawfully treat personal data? Can I use a certain image to promote a specific product? What are the limits and requirements to exploit natural resources? Law’s authoritativeness makes the lawyer’s work simple (in theory at least); the law is what the specific statute or Act say so (I am writing from a Civil Law standpoint; however, this can be translated to Common Law sources too). By identifying the legal body that contains the answer to the question, and confirming that it is in force (it was enacted by the competent institution and was not repealed), an answer to the client’s question can be issued.
As seen, the law’s authoritativeness allows us to act in an efficient and coordinated way: we do not have to trust in each other; we all can rely on the law as the reason that everyone has to conform his/her action. The same law will punish any disconformity to this reason or rule, and the harmed person will be repaired, also because the law says so.
However, we can find another point of view, one that challenges this supposed efficient and coordinated operation of law. If we put pressure to the day to day basis assumptions of the lawyer’s account of the law, we can see how it starts to show some deficiencies to explain the complex relations that took place in the enactment and enforcement of legal provisions.
For starters, the lawyer and the client are not interested in the validity (or legality) of the legal system as a whole; they assume it is valid and legally binding. Additionally, they do not question the reasons behind the different provisions; they merely conform to them. The same can be said regarding their assumption of judge’s neutrality when judging, the only possible criticism of a ruling has to be translated into legal forms. The list of assumptions is endless. Since lawyers and clients’ concerns are the operation of requisites, legal relations, property, torts and so on, from within the law (without focusing on the relying reasons that justify or explain such legal institutions), to question the basis of such operation (or its legitimacy) appears as an irrelevant and non-profitable exercise.
I have found that studying an LLM is a great opportunity to leave the practitioner point of view and start questioning the assumptions that have ruled my relationship with the law. I think that having the possibility to do so (I have been studying the LLM for six months already) from Kent’s critical methodologies is a challenging and exciting opportunity. To question the law’s basis can help us understand it better and equip us with broader and better tools to come back to the practice of law or to start an academic career.
I have found that the critical approach has helped me not only to question my intake of law’s nature and operation but also to realise the importance of historical, economic, social and political context in the shaping of legal concepts, institutions and systems. This critical approach (for which the University of Kent is recognised worldwide) can show us that some of the law’s concepts or institutions that appear to us as natural, desirable and neutral are not as such. In fact, they might have been acting as legitimating tools to justify and naturalise certain inequalities[2]of gender, class, race, etc.
Kent’s LLM encourages and challenges you to take different point of views towards the law, and this is a feature that not too many schools can be proud of. Having the possibility to face the law from different disciplines and perspectives equips you with much more tools to develop yourself within the law.
[1] Joseph Raz, ‘Authority, Law and Morality’ In Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford University Press 1995) 210
[2] David Trubeck, ‘Where the Action is: Critical Legal Studies and Empiricism” (1984) 72 Geo. L. J. 575, 597
About the author: Felipe obtained his Law degree from the Universidad de Chile where he worked in the student law review “Derecho y Humanidades” (“Law and Humanities”) and as a research assistant of the Human Rights Centre of the Universidad de Chile. After graduation, he worked in an NGO involved with the promotion of transparency in the public sector, where he had the opportunity to research in the areas of right of access to public information, data protection and law and technologies. Parallel to his work at the NGO, he worked as a teacher assistant in the Universidad de Chile’s Institute of Communication and Image, in the module “Right to Communication and Freedom of Speech” of the Journalism school.
In 2017 he started to work in a Law firm within its IP and data protection group, where he had to deal with the commercial aspects of the regulation and enforcement intellectual property and private information. During his work in the law firm, he had the opportunity to continue as a teacher assistant in the Journalism school of the Universidad de Chile.
His main research interests are Intellectual Property, Freedom of Speech, Privacy, Legal Theory and the intersections between Law and Humanities.