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PROBLEMA
Anuario de Filosofía
y Teoría del Derecho 7

LAW AND REASONS: COMMENTS

ON RODRIGUEZ-BLANCO

Brian H. BIX1

Resumen:
Veronica Rodriguez-Blanco explora con minuciosidad en su detallado e
importante artículo, “Reasons in Action v Triggering Reasons: A Reply to
Enoch on Reason-Giving and Legal Normativity”, la naturaleza del otor-
gamiento de razones, en aras de cuestionar el influyente trabajo reciente
de David Enoch sobre el otorgamiento de razones y el derecho. Si bien el
artículo de Rodriguez-Blanco constituye una importante contribución a
la literatura en cuanto a la mejor comprensión del otorgamiento de razo-
nes y la razón práctica, no está claro si el enfoque hacia las razones para
la acción, reformado sobre la línea de lo que sugiere Rodríguez-Blanco,
clarificaría la cuestión primordial de la que se ocupa: la manera en que
los sistemas jurídicos en general o las normas jurídicas individuales le
dan (o no) a los ciudadanos razones para la acción. La cuestión sobre si
tenemos una obligación moral (presuntiva) general de actuar (o de abste-
nerse de actuar) tal como lo disponen las normas depende en gran medi-
da de si hay buenos argumentos en contra de un enfoque individualista
y casuístico para responder a tales normas.

Palabras clave:
Razón práctica, normas y razones, obligación moral de obede-
cer el derecho, normatividad del derecho.

1 Frederick W. Thomas Professor of Law and Philosophy, University of

Minnesota. I am grateful for the comments and suggestions of William A.

Edmundson.
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Abstract:
In Veronica Rodriguez-Blanco’s thoughtful and important article, “Reasons
in Action v Triggering Reasons: A Reply to Enoch on Reason-Giving and Le-
gal Normativity,” she explores with great care the nature of reason-giving,
in connection with challenging David Enoch’s influential recent work on
reason-giving and the law. While Rodriguez-Blanco’s article makes an im-
portant contribution to the literature on the best understanding of rea-
son-giving and practical reasoning, it is not clear that an approach to rea-
sons for action reformed along the lines Rodriguez-Blanco suggests would
change or clarify the ultimate question on which she focuses: the way in
which legal systems in general or individual legal norms do (or do not) give
citizens reasons for action. The question of whether we have a general (pre-
sumptive) moral obligation to act (or refrain from acting) as legal norms di-
rect us depends to a signif icant degree on whether there are good argu-
ments against an individualistic, case by case, approach to responding to
such norms.

Keywords:
Practical Reason, Norms and Reasons, Moral Obligation to Obey
the Law, Normativity of Law.

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 LAW AND REASONS

SUMMARY: Introduction. I. Explaining the Normativity of Law.

II. Theory (Theories) of Reasons for Action. III. Law
and Reason-Giving. Conclusion.

INTRODUCTION

In Veronica Rodriguez-Blanco’s thoughtful and important

article, “Reasons in Action v Triggering Reasons: A Reply to
Enoch on Reason-Giving and Legal Normativity”,2 she ex-
plores with great care the nature of reason-giving, in con-
nection with challenging David Enoch’s influential recent
work on reason-giving and the law.3
In this response, I will focus primarily on the background
issue that creates the context for the debate between Rodri-
guez-Blanco and Enoch: the “problem of normativity” in
law, the question of whether, when, and how legal norms
create reasons for actions for citizens. In what follows, Part
I explores what commentators means when they state that
there is a problem regarding “the normativity of law” that
needs explanation. After a brief discussion in Part II of
some difficulties in theories about reasons for action, Part
III considers barriers to the conclusion that legal norms
always give us reasons for action.

2 All references to “Reasons in Action v Triggering Reasons” will be

given as [manuscript] page numbers in parentheses. References to other

works will be in footnotes.
3 David Enoch, “Reason-giving and the Law”, in Oxford Studies in Phi-

losophy of Law, vol. 1 (Lesley Green & Brian Leiter, eds., Oxford, Oxford
University Press, 2011), pp. 1-38, text also available at http://law.huji.
ac.il/upload/Reason-Giving_and_the_Law.pdf.; see also David Enoch,
“Giving Practical Reasons”, Philosophers’ Imprint, vol. 11(4) (March 2011),
www.philosophersimprint.org/011004/.
As Rodriguez-Blanco points out, I have relied on Enoch’s work in two of
my recent works: “The Nature of Law and Reasons for Action”, Problema.
Anuario de Filosofía y Teoría del Derecho, No. 5, 2011, pp. 399-415, and
“Law, Plans, and Reasons for Action” (review of Scott Shapiro, Legality),
Ethics, vol. 122, pp. 444-448 (2012).
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I. EXPLAINING THE NORMATIVITY OF LAW

Rodriguez-Blanco introduces her paper by informing us

that “[t]he problem of how legal rules or directives give us
reasons for action is the central problem of what has been
called the ‘normativity of law’” (man at p. 1, footnote omit-
ted). It is important to be as precise about this as Rodri-
guez-Blanco is. In other discussions about “explaining” “the
normativity of law,” there often seems to be an assumption
that all legal systems —or at least all “generally just” legal
systems— give us reasons for action all the time.4
It is well known that the “normative nature of law” is cen-
tral, in different ways, to many of the most important mod-
ern jurisprudential approaches to law, for example, those of
H. L. A. Hart and Hans Kelsen.5 Theorists have emphasized
that one cannot properly understand law without focusing
on the way that it purports to prescribe citizens’ behavior.
However, to have that as one’s starting point that law (or
“norms from generally just legal systems”) always gives citi-
zens reasons for action would be to beg a highly controver-
sial question —the question of under what circumstances
(and how frequently) legal systems and legal norms in fact
give us reasons for action—. As Rodriguez-Blanco points
out, there is always a danger in assuming what is still to be
proven. While I do not agree with her accusation that
Enoch developed his theory about reason-giving to fit his
preferred theory about the nature of law (p. 3), I do not
doubt that there are ample examples of theorists in this
and related areas begging questions that should be open for
discussion and analysis.

4 See, e.g., Jules L. Coleman & Brian Leiter, “Legal Positivism”, in

Dennis Patterson (ed.), A Companion to Philosophy of Law and Legal The-
ory (2nd ed., Wiley-Blackwell, 2010), pp. 228-248.
5 See, e.g., H. L. A. Hart, The Concept of Law (2nd ed., Oxford, 1994);

Hans Kelsen, Introduction to the Problems of Legal Theory (Bonnie

Litschewski Paulson & Stanley Paulson, trans., Oxford, 1992).
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Of course, speaking of “law’s normativity” need not entail

a view that legal systems (or generally just legal systems, or
generally just legal norms) always give reasons for action,
or even that they only presumptively do so. It would suffice
that some legal systems —or just some legal norms— on
some occasions give (some) individuals reasons for action.
And one can take that starting point without falling into
what Frederick Schauer considers to be a distinctive mis-
take of modern legal positivism: assuming that law is au-
thoritative and that the Hartian “internal point of view”6
(the perspective of actors who believe that law gives them
reasons for action) should be given priority in legal theory.7
As we shall see, though, even the assertion that law
sometimes gives some people reasons for action requires
clarification before one gets to explanation. For there are al-
ternative “subjective” and “objective” ways of understanding
the giving of reasons, as will be discussed in the next sec-
tion. That some people might act (or refrain from acting) in
a particular way, in this case, consistently with what legal
norms prescribe, may call for a psychological explanation
rather than a philosophical one (just as one’s wonder re-
garding why people treat the choices, actions, or comments
of celebrities as reasons for action would be in the arena of
psychology and sociology rather than philosophy).8 Our
question is clearly more on the objective side of the ques-
tion: why people justifiably should (at least on some occa-
sions) treat legal rules as reasons for action; this question
calls for a philosophical explanation.
Additionally, even if one grants or assumes that rea-
son-giving by law is only “sporadic” (applying only to some
legal norms and some people on some occasions), this rea-

6 See Hart, The Concept of Law, supra note 5, pp. 79-91.

7 See, e.g., Frederick Schauer, “Positivism Through Thick and Thin”,
in Brian Bix (ed.), Analyzing Law (Oxford, 1998), pp. 65-78, at pp. 70-78.
8 Rodriguez-Blanco does make a favorable, if passing, reference to

“moral psychology” (p. 24); however, psychology, moral or otherwise, is

not a topic on which I am qualified to comment.
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son-giving can still seem to be, in some senses, mysterious.

How or in what way can the actions of officials (by voting
for legislation, decision legal disputes in the courts, or pro-
mulgating administrative regulations) create for citizens
reasons for action that they did not have before? The works
of both Kelsen and Hart display puzzlement on this issue, a
puzzlement increased by their belief that law should be un-
derstood as something conceptually separate from morality.
Both Kelsen and Hart seem to find recourse in a (not en-
tirely persuasive) belief that law creates its own sort of
normativity, much as a game does (chess reasons for action
apply only to those who choose to play chess; could legal
reasons be similarly autonomous?).9 However, Kelsen and
Hart, and their views of legal normativity, are topics for an-
other day;10 we need to return to the debate between
Rodriguez-Blanco and Enoch.

II. THEORY (THEORIES) OF REASONS FOR ACTION

In her article, Rodriguez-Blanco offers a useful overview of

theories about reasons for action, dividing them into three
categories: normativist approaches —to which she gives the
most attention, in part because this is the category to which
she assigns Enoch’s work—; Humean approaches, which
she seems to dismiss quickly; and approaches that connect
reasons to the structure of intentions.
There are obvious difficulties in offering a general analy-
sis of reasons for action, as it is hard to account simulta-

9 Cf. Andrei Marmor, Law in the Age of Pluralism (Oxford, 2007), pp.

153-181 (“How Law is Like Chess”).

10 I also leave for others or for another day the important question of

the precise way in which legal norms affect (or should affect) our reasons:
do they merely produce reasons that are stronger than other (e.g. pruden-
tial) reasons, or do they work to exclude or pre-empt other reasons? See,
e.g., Joseph Raz, Practical Reason and Norms (Princeton, 1990); Noam
Gur, “Normative Weighing and Legal Guidance of Conduct”, Canadian
Journal of Law and Jurisprudence, vol. 25, pp. 359-391 (2012).
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neously for the objective aspect of reasons for action (what I

actually have reason to do), the subjective aspect (what I
think I have reason to do), and the persistence of guidance.
As we are fallible reasoners, and certainly fallible moral rea-
soners, what we think we have reasons to do frequently di-
verges from what we actually have reasons to do. It may be
that, in the end, no single theory can account for all as-
pects of reasons for action, just as it may be the case that
no theory of the nature of law can account both for its quite
different aspects – e.g., its role in practical reasoning and
its status as a kind of social institution.
Rodriguez-Blanco does an excellent job of pointing out
difficulties that most normativist approaches will have, in-
cluding some that may be distinctive to Enoch’s theory of
reason-giving. One might only note that it would seem
likely that alternative approaches (Rodriguez-Blanco hints
at her preferred approach in this brief article, but does not
fully display its outlines and justifications) might have the
mirror problem – to be weak explaining just those aspects
of reason-giving where normativist theories are strong. I
leave to others more expert in this area to offer final judg-
ments on whether a theory can adequately respond to all
aspects of practical reasoning.

III. LAW AND REASON-GIVING

While the Introduction of Rodriguez-Blanco’s paper be-

gins by referring to the “problem of how legal rules or direc-
tives gives us reasons for action” and the “central question
of legal normativity” (p. 1), law soon largely drops out of the
discussion.11 She returns to the topic, in a tantalizing way,
near the end of her critique of Enoch’s approach:

11 Again, with the exception of Rodriguez-Blanco’s accusation, in pass-

ing, that David Enoch had allowed his theory of reasons for action to be
derived from or determined by his “own favoured theory of law” (p. 3).
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It is trivially true to say that if we understand the phenome-

non of reason-giving then we pave the way to better under-
standing how legal directives and rules give us reasons for
actions… [W]e need to focus further on the phenomenology
of legal directives, commands and rule-following in light of
moral psychology and philosophy of action to achieve a
sound theory of what legal normativity amounts to in terms
of how legal directive and legal rules provide reasons for
action (pp. 23-24).

There will be more on Rodriguez-Blanco’s ideas about

normativity later in this section; for now, I would like to re-
turn to the “law” aspect of the topic, if for no other or better
reason than that I am more comfortable analyzing theories
about the nature of law than I am analyzing theories about
reasons and reasoning.
Those who argue that law gives —or at least that generally
just legal systems or the legal norms of generally just legal
systems give— prima facie reasons for action have a difficult
task. They must show that (all or some category of) legal
norms always give reasons to act in compliance. Of course,
the argument does not have to be that such reasons are
conclusive; it is sufficient that the legal norms give weight in
favor of a particular action or forbearance, even if factors un-
related to the legal norm in question might create stronger
reasons against that action or forbearance (as when one
rightfully violates legal rules about maximum driving speeds
to rush a seriously injured friend to the hospital).
David Enoch’s ultimate position, echoing that of Joseph
Raz, M. B. E. Smith, and many others, is that legal norms
sometimes give people reasons for action, but the matter is
contingent, depending on the norm, the subject-matter,
and the actor.12 This reflects a presumptive individualism
in moral decision-making: that presumptively each person

12 See Enoch, supra note 3, at 14-33; Joseph Raz, Ethics in the Public

Domain (Oxford, 1994), pp. 325-338; M. B. E. Smith, “Is There a Prima Fa-
cie Obligation to Obey the Law?”, Yale Law Journal, vol. 82, pp. 950-976
(1973).
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should decide how to act for herself, and case by case, un-
less and until a good reason is given to defer to others or to
decide on a categorical basis.
Those who wish to argue that all the norms of (some) legal
systems create reasons for action must offer an analysis that
does not turn on the content of particular legal norms.13 The
difficulty, as skeptics of such claims point out, is that with
many (if not most) legal norms there are likely circum-
stances where non-compliance with the norm has little to no
negative effect in the world —no harm to other people or to
society generally, and no undermining of other people’s re-
spect for or support of the law— and in such circumstances
it is hard to see why we would have a reason to comply.
How could one respond to this sort of critique? Perhaps
to create a general or presumptive obligation to obey the
law, one would need to avoid an instrumental approach to
understanding the benefits of law —for if the focus is on the
benefits that legal norms or the legal system as a whole are
there to create, it is always open to the skeptic to argue
that the morally autonomous agent should investigate, case
by case, whether such benefits are in fact achieved, and,
inevitably, there will be occasions when no benefits are in
fact achieved by that actor’s compliance. It would appear to
be the case that to defeat the skeptic one would need an ar-
gument that law —as a system and in all of its (not ex-
tremely unjust) legal norms— has significant intrinsic
value, and not just potential instrumental value.14

13 Even if one accepts with Gustav Radbruch (and some understand-

ings of Aquinas) that extremely unjust norms lose their status as laws,
see Gustav Radbruch, “Statutory Lawlessness and Supra-Statutory Law”
(trans. Bonnie Litschewski Paulson & Stanley L. Paulson), Oxford Journal
of Legal Studies, vol. 26, pp. 1-11 (2006), that still leaves the problem of
justifying the reason-giving power of all the remaining norms, regardless
of their moral value, their significance, and their success in coordinating
behavior.
14 See George Duke, “Finnis on the Authority of Law and the Common

Good”, Legal Theory (forthcoming) (making a similar argument, at greater

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Rodriguez-Blanco, in her many writings (both published15

and unpublished)16 seems to offer an approach along these
lines, focusing on the “good-making characteristics of legal
rules”.17 Under this approach, the following of legal rules
–the use of legal rules as guidance– is tied closely to the
goods officials intend to achieve, both through the creation
of a legal system, and through individual legal norms. Ro-
driguez-Blanco’s argument has been that law is authorita-
tive because law purports to be good, and endeavors to cre-
ate this good (or these goods) in a special way (through the
rule of law).18
One can see how the potential or intended good of the le-
gal system as a whole, or of particular legal norms (or sets
of legal norms —as in areas of law—), could (subjectively)
guide behavior. We are attracted to the good in the law, and
the good that law can achieve. We want to support it. Thus,
we can explain why we do follow the law, or why we do obey
particular legal rules. However, the objectivist question still
comes: when are we morally obligated to follow the law?

length, in the context of offering a critique of John Finnis’s defense of a

moral obligation to obey the law).
15 Veronica Rodriguez-Blanco, “The Moral Puzzle of Legal Authority”,

in Stefano Bertea & George Pavlakos (eds.), New Essays on the Normativity
of Law (Oxford: Hart Publishing, 2011), pp. 86-106; Veronica Rodri-
guez-Blanco, “Claims of Legal Authorities and ‘Expressions of Intention’:
The Limits of Philosophy of Language”, in Current Legal Issues (Michael
Freeman & Fiona Smith (eds.), forthcoming, Oxford University Press,
2013); see also Veronica Rodriguez-Blanco, “Social and Justified Legal
Normativity: Unlocking the Mystery of the Relationship”, Ratio Juris, vol.
25, pp. 409-433 (2012).
16 E.g., Veronica Rodriguez-Blanco, “Le gal Rules in the Guise of the

Good” (unpublished manuscript, 2010) (on file with author); Veronica Ro-
driguez-Blanco, Law Under the Guise of the Good (unpublished book
manuscript, 2010) (on file with author).
17 E.g., Rodriguez-Blanco, “Le gal Rules in the Guise of the Good”, su-

pra note 16 (man. at 20).

18 E.g., Rodriguez-Blanco, “The Moral Puzzle of Authority,” supra note

15, at 87 & n. 5. She adds that Nazi law fails to be an authority because it
is not an instance of authority as a good sort of thing. Íd. at 101.
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One can concede that governments that try to do good

things, and do so through rule of law procedural standards,
are themselves good: that we have reason to create them
and support them while they are created. As already dis-
cussed, however, it is another matter to show that individ-
ual citizens have reasons to comply with individual legal
norms. It is certainly true that for centuries it had been as-
sumed that the conclusion that a government was legiti-
mate or that a legal system was generally just would entail
the further conclusion that citizens had at least a presump-
tive moral obligation to obey. However, modern theorists of
the question of the moral obligation to obey the law no lon-
ger assume that one view entails the other; they generally
hold that the moral obligation to obey requires an addi-
tional argument.19
Citizens would have a reason to comply if non-compliance
would significantly harm a generally just legal system (in
Aquinas’s phrase, “create disorder or demoralization”),20 but
that is rarely the case. With most instances of deciding
whether to comply with a legal norm or not, no good reason
has been offered against the default position: the practically
reasonable person making a practically reasonable choice,
case by case, regarding whether to comply with the law or
not.
There are different sorts of arguments that might be of-
fered, and which have been offered, to try to create a global
(or global-presumptive) obligation to obey the law. Often
these run along the lines of a Kantian-style argument that
individuals should not pick and choose because of the bad
consequences should everyone approach legal norms that
way.21 Another approach is to argue that practically reason-
able people, aware of their own biases and interests, would

19 See, e.g., Smith, supra note 12, Raz, supra note 12.
20 Thomas Aquinas, Summa Theologica, I-II, Qu. 96, art. 4, corpus; see
also John Finnis, Aquinas (Oxford, 1998), pp. 273-274.
21 An argument along these lines can be found in A. M. Honore, Making

Law Bind (Oxford, 1987), pp. 117-138.

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defer to the legal system, because a legal system is a

method of distributing burdens and benefits across differ-
ent individuals and groups; for someone to pick and choose
is unfairly to accept benefits without accepting the corre-
sponding burdens (and to accept law where it agrees with
their own views of what needs to be done, but not to accept
it when it varies from those views, though knowing that the
rules there follow other citizens’ views about what needs to
be done).22
These are significant arguments, not to be dismissed
lightly. However, it seems that one might still respond that
in the end one is left with the practically reasonable person
who must make the moral judgment for herself: giving due
deference based one one’s own fallibility and bias (though
also keeping in mind the fallibility and bias that can, and
often does, afflict lawmakers), should one obey particular
legal norms?23

CONCLUSION

Veronica Rodriguez-Blanco’s article makes an important

contribution to the literature on the best understanding of
reason-giving and practical reasoning. However, it is not

22 Arguments along these lines can be found in John Finnis, “The Au-
thority of Law in the Predicament of Contemporary Social Theory”, Notre
Dame Journal of Law Ethics & Public Policy, vol. 1, pp. 115-137 (1984);
John M. Finnis, “Law as Co-ordination”, Ratio Juris, vol. 2, pp. 97-104
(1989).
23 Thomas Christiano has argued that at least for legal norms that are

the product of democratic decision-making, a failure to obey the law con-

stitutes a failure to give equal respect to fellow citizens. See, e.g., Thomas
Christiano, “The Authority of Democracy”, Journal of Political Philosophy,
vol. 12, pp. 266-290 (2004); Thomas Christiano, “Democracy’s Authority:
Reply to Wall”, Journal of Political Philosophy, vol. 14, pp. 101-110 (2006).
This argument is part of a large issue that cannot be adequately dis-
cussed here; for now suffice it to say that I do not find the argument per-
suasive. I touch on the topic in a review of Christopher J. Peters, A Matter
of Dispute (Oxford, 2011), to appear in Law and Philosophy (forthcoming).
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clear that an approach to reasons for action reformed along

the lines Rodriguez-Blanco suggests would change or clarify
the ultimate question on which she focuses: the way in
which legal systems in general or individual legal norms do
(or do not) give citizens reasons for action. The question of
whether we have a general (presumptive) moral obligation
to act (or refrain from acting) as legal norms direct us de-
pends to a significant degree on whether there are good ar-
guments against an individualistic, case by case, approach
to responding to such norms.

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