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This chapter considers two ways in which the simple default logic defined earlier can be elaborated, leading to a more robust theory of reasons. First, the priorities among default rules have so far been taken as fixed in advance, but there are situations in which it is most natural to think of these priorities themselves as established through default reasoning. And second, the notion of defeat defined so far captures only one form, described here simply as “defeat,” but often called “rebutting defeat.” There is at least one other form, generally called “undercutting defeat,” and related to the concept of an “exclusionary reason,” in which one default defeats another, not by contradicting its conclusion, but by undermining its capacity to provide a reason at all.

This chapter reassesses the credentials of the book's central new idea concerning practical reason. That idea is of the importance of exclusionary reasons for the understanding of some rules and related normative concepts. The chapter first discusses the notion of an exclusionary reason and then argues that not only do many people believe that there are exclusionary reasons, but they are sometimes right to think so because some exclusionary reasons exist. It then turns to the connection between exclusionary reasons and rules, promises, decisions, authoritative directives, and others. Generally, people conform to a reason for a certain act if they perform that act in the circumstance in which that reason is a reason for its performance. Obviously, people who conform to a reason do not act against it. Other things being equal, they are not irrational. Other things need not be equal. Their reasons for action may have been misguided or irrational.

The thought behind Raz's notion of ‘exclusionary reason’ in relation to law can be put more generally. Instrumental rationality represents practical reasoning as homogeneous. One ought always, all things considered, to do whatever one ought to do on the balance of reasons. Any reason is in principle capable of being weighed in the balance against any other reason, and bears upon a practical decision in logically the same way as any other reason. Raz rejects this logical homogeneity, distinguishing two different kinds of practical reasons: first-order and second-order. He has two arguments for the existence of exclusionary reasons – the Functional Argument and the Phenomenological Argument – which are discussed in this chapter. The Functional Argument rests on the idea that rules, and a fortiori legal rules, cannot perform the function that they perform unless their role in practical reasoning is construed as that of exclusionary reasons. The Phenomenological Argument rests on the idea that aspects of the internal content of practical reasoning cannot be accounted for unless the role of rules, and a fortiori legal rules, in practical reasoning is construed as that of exclusionary reasons.

This chapter poses five questions. First, are adherence rules serious rules or pseudorules? Second, what reasons do various adherence rules provide to judges? Third, what reasons do various adherence rules exclude from consideration? Fourth, which adherence rules, if any, do lawmakers have reasons to promulgate and why? Fifth, how should judges take adherence rules into account in their decisions? The function of adherence rules is analyzed in light of discussions by Joseph Raz and Frederick Schauer. The chapter distinguishes between permissive, moderate, and restrictive adherence rules. Various arguments for promulgating adherence rules are discussed, including arguments from formal legality, settlement, predictability, stability, error, efficiency, coordination, reliance, legitimacy, autonomy, respect, and fairness. The chapter concludes that there are good reasons to promulgate a restrictive rule.

Chapter 7 addresses the Order Problem of Legal Normativity, arguing that there is no reason to think that the practices constituting something as a system of law must be reasonably contrived to give rise to objective exclusionary motivating reasons to comply with mandatory legal norms governing non-official behavior. It argues that there are three basic sources of objective motivating reasons and that there is nothing in these constitutive practices reasonably contrived to give rise to objective exclusionary motivating reasons from any of these sources. It then argues that these constitutive practices are equipped to do everything that a legal system can be non-idiosyncratically used to do simply in virtue of providing objective motivating prudential reasons to comply with mandatory legal norms governing non-official behavior; the claim that these constitutive practices can produce objective exclusionary motivating reasons explains nothing about legal normativity that needs to be explained.

We start with Austin’s suggestion that we should compare ‘I know’ with ‘I promise.’ Assurances, routinely expressed with an explicit ‘I know’, offer an unlimited guarantee to one’s addressee. This guarantee can be understood in terms of the assurance giver offering exclusionary reasons to the hearer. This distinguishes the speech act of assurance from that of assertion. Alston’s theory of speech acts provides a framework for articulating the distinctive features of assurance. We find that assurance givers and receivers have commitments that they can shoulder only by appeal to a standard of reasonableness. As in the law, a reasonable person standard allows for coordination of judgments about the relevant normative commitments. Further, we find that a link between assurance-giving and knowledge is forged by the notion of reasonableness; the result is a reasonable alternatives theory of knowledge.

This chapter examines normative systems, that is, systems of norms. One regards the rules of a game or of a language, the laws of a country or the regulations and rules of a social club as forming a system. One says that ‘this is a rule of soccer but it is not a rule of rugby’ or that ‘it is a rule of English but not of French’ or that ‘this is part of English law but there is no such law in the American legal system’. Such statements testify to a conception by which certain groups of norms are more than haphazard assemblages of norms. Normative systems are understood to have some kind of unity. The chapter looks at a few kinds of normative system and shows how their unity consists in certain patterns of logical relations among their norms. It explores constitutive rules, systems of interlocking norms, games as systems of joint validity, games as autonomous normative systems, norm-applying institutions, institutionalized systems and exclusionary reasons, and rules of recognition.

Joseph Raz argues that the law claims legal directives constitute reasons to exclude personal reasons for contrary action. This chapter raises some considerations against his argument while admitting that we may treat directives as exclusionary: Raz's reasoning neglects a failure of closure; novel choice-of-evils defences to criminal accusations show that we are invited to act on our own reasons even when in conflict with the law; and anyone who believes that there are gaps in the law (as Raz does) must also allow that it cannot demand exclusion of our personal reasons. If the function of authority is to get individuals to comply better with reason than they would do if left on their own, it does not make sense for it to claim to preempt our contrary reasons and at the same time leave open spaces or catch-all exceptions which we must use our own devices to fill.

What makes a choice rational? This chapter defends comparativism the view that what makes a choice rational is a comparative fact about the alternatives or their reasons. Comparativism is a view that, if correct, any first-order normative theory must accept. There are three important challenges to comparativism: (1) that noncomparative relations among reasons, such as “exclusion,” can be what makes a choice rational; (2) that in some or all choice situations there is just “the” or “a” thing to do, and so comparative facts are irrelevant to what makes a choice rational; and (3) that the incomparability of the alternatives is compatible with the possibility of a rational choice. These challenges are explored and addressed.

This chapter examines the way in which norms make demands on what happens inside our heads. Rather than demanding that we behave in certain ways, they demand that we have or form certain attitudes and that we think or deliberate in certain ways. The chapter discusses some of the ways in which norms might structure how we are supposed to think about what to do. It covers norms as trumps or exclusionary reasons; norms narrowing the deliberative agenda; norms requiring that one and only one alternative be considered; norms and calculative reasoning; and the unthinking nature of norm compliance.

This chapter collects a number of arguments for a robust distinction between the justifying weight and requiring weight of a given normative practical reason. It then presents a new form of argument for such a distinction: a demonstration that it is already latent in the very different accounts of such reasons supported by Stephen Kearns and Daniel Star, T. M. Scanlon, and Joseph Raz. That the justifying/requiring distinction shows up in views that are so different in other ways—views that, moreover, did not set out explicitly set out to capture or even allow for it—suggests that it is a genuine feature of the practical normative domain. The chapter also shows how a more explicit recognition of a robust justifying/requiring distinction would provide important benefits for proponents of all three views. This too provides some reason to accept it.

This chapter presents the book’s topic, i.e. law’s interaction with practical reasons, demarcates the scope of the book, and clarifies some key notions relevant to the inquiry. Specific issues commented on include, inter alia, the book’s working assumptions on the criteria of legal validity (Section 1.1.1); the relevance of arguments about authority (Section 1.1.2); and the type of reasons central to the inquiry (Section 1.2). Finally, the chapter sets out the two principal positions examined in Parts I and II: first, Raz’s position that when the law satisfies certain conditions that invest it with legitimate authority, it acquires pre-emptive force, namely it constitutes reasons for action that exclude and take the place of some other reasons; and, second, an antithetical position, the weighing model, which explains the relevant phenomenon in terms of reasons for action that compete with other reasons by means of their weight (Section 1.3).

The discussion in this chapter centres on what was entitled in Chapter 2 the scope-of-exclusion reply. The chapter considers various possible scope-demarcating criteria, which involve arguments about the type of reasons authorities have power to pronounce upon as well as tools of interpretation that can help determine their directives’ scope of application. It is argued that, in at least some of the relevant disobedience-warranting situations, the reasons that warrant disobedience fall within the scope of exclusion, or cannot be marked out of that scope without relying on demarcation criteria which are themselves inconsistent with the pre-emption thesis.

The purpose of this chapter is to outline an alternative to Individualism and to show that moral rights can be taken seriously while acknowledging the role of organized societies in determining the actual distribution of moral rights and duties. In some cases, the rules accepted by such societies give content to what was indeterminate at the pre-contractual level. In others, they redistribute moral rights and duties among members of society. In both these ways, rights behave in a less rigid manner than that entailed by Individualism. To understand how social rules can determine rights, it is particularly helpful to look at the way social roles provide their holders with a permission to diverge from what would be required from them pre-contractually. In decent societies, holders of public roles typically have a right to fulfil their professional duty without deliberating on the merits of the case; namely, without being guided by first-order reasons that pertain to the cases with which they deal. This applies to combatants as well. In most cases, they have a right to disregard the first-order reasons pertaining to the justness of the war they are sent to fight. The responsibility for launching an unjust war lies on the shoulders of the politicians and not on those of combatants, just as the responsibility for sending an innocent person to jail rests with the court and not with the prison guards.

This chapter considers James Griffin’s book On Human Rights, which is an immensely important contribution to moral and political thought. The chapter starts by explaining why Griffin thinks that the term ‘human right’ suffers from an unacceptable indeterminateness of sense, and then summarizes Griffin’s objections to various prominent accounts of human rights. An outline of Griffin’s own account of human rights follows. His theory grounds human rights in ‘personhood’ and practicalities. The final section of the chapter explores Griffin’s objections to rule-consequentialism’s approach to human rights.