I would like to thank Julie Dickson, Danny Priel, Fred Schauer, Nigel Simmonds, Nicos Stavropoulos and Bas van der Vossen for helpful comments on earlier versions of this work. I am also grateful to Sarah Chapman who provided helpful comments on my discussion of empirical work in psychology.

1. Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986) at 46.Google Scholar

2. Ibid. In some places he uses the phrase “protected reasons” for a similar idea (e.g., Raz, Joseph, The Authority of Law (Oxford: Clarendon Press, 1979) at 18 Google Scholar).

3. Raz, Joseph, Practical Reason and Norms, 2d ed (Princeton, NJ: Princeton University Press, 1990) at 191.Google Scholar

4. Ibid at 39. I will sometimes use the terms preemptive and exclusionary loosely as interchangeable, despite the difference between them.

5. Ibid at 36, 39.

6. Ibid at 36, 40, 189, 190; Raz, supra note 2 at 22-23.

7. For some critiques of preemptive or exclusionary reasons, see Clarke, D S, “Exclusionary Reasons” (1977) 86 Mind 252 CrossRefGoogle Scholar; Flathman, Richard E, The Practice of Political Authority: Authority and the Authoritative (Chicago, IL: University of Chicago Press, 1980) at 109–25 Google Scholar; Gans, Chaim, “Mandatory Rules and Exclusionary Reasons” (1986) 15 Philosophia 373 CrossRefGoogle Scholar; Moore, Michael S, “Authority, Law, And Razian Reasons” (1989) 62 S Cal LR 827 Google Scholar; Edmundson, William A, “Rethinking Exclusionary Reasons” (1993) 12 L & Phil 329 CrossRefGoogle Scholar; Hurd, Heidi M, “Challenging Authority” (1991) 100 Yale LJ 1611 CrossRefGoogle Scholar; Dworkin, Ronald M, “Thirty Years on” (2002) 115 Harv LR 1655 at 1671-72CrossRefGoogle Scholar; Mian, Emran, “The Curious Case of Exclusionary Reasons” (2002) 15 Can J L & Jur 99 Google Scholar; Gur, Noam, “Legal Directives in the Realm of Practical Reason: A Challenge to the Preemption Thesis” (2007) 52 Am J Juris 159 CrossRefGoogle Scholar; Martin, Margaret E, “Raz’s The Morality of Freedom: Two Models of Authority” (2010) 1 Jurisprudence 53 at 61-68CrossRefGoogle Scholar. For a recent survey of relevant literature, see Ehrenberg, Kenneth, “Critical Reception of Raz’s Theory of Authority” (2011) 6 Philosophy Compass 777 CrossRefGoogle Scholar.

8. See, e.g., Clarke, ibid; Flathman, ibid; Gans, ibid; Moore, ibid; Dare, Tim, “Raz, Exclusionary Reasons, and Legal Positivism” (1989) 8 Eidos 11 at 26Google Scholar; Soper, Philip, The Ethics of Deference: Learning From Law’s Morals (Cambridge: Cambridge University Press, 2002) at 38–48 CrossRefGoogle Scholar. See also Postema, Gerald J, “Positivism, I Presume?… Comments on Schauer’s ‘Rules and the Rule of Law’” (1991) 14 Harv J L & Pub Pol’y 797 Google Scholar (where the author sides with a similar idea). For a possible variant of this view, see Regan, Donald H, “Authority and Value: Reflections on Raz’s Morality of Freedom” (1989) 62 S Cal LR 995, at 1003-33, 1086-95Google Scholar (Regan stresses that law is not itself a reason for action and does not even generate reasons for action, but is rather merely indicative of existing reasons for action or has the capacity to change them insofar as it can affect normatively relevant factual conditions, e.g., the likely behavior of other actors (ibid at 1019-33; see also Regan, Donald H, “Reasons, Authority, and the Meaning of ‘Obey’: Further Thoughts on Raz and Obedience to Law” (1990) 3 Can J L & Jur 3 Google Scholar). Yet, by this understanding as well, conficts between the relevant reasons should turn on their relative weight).

9. See Regan, “Authority and Value”, supra note 8 at 1025-31. Similar reasons may be associated with law’s ability to contribute to certainty, stability, social order, and other desirable conditions.

10. See ibid at 1004-18, 1086-95; Hurd, supra note 7 at 1667-77.

11. A similar argument is discussed in Gans, supra note 7 at 377, 381-82 (who refers to it as “the argument from justification”); Edmundson, supra note 7 at 340-43 (who calls it the “teleological argument”); and Shiner, Roger A, “Exclusionary Reasons and the Explanation of Behaviour” (1992) 5 Ratio Juris 1 at 10-14CrossRefGoogle Scholar. The functional argument should be understood as referring to the function that authorities perform by means of their normative force. The argument does not (and need not) deny that there is an extent to which authorities can effectively employ coercive measures to bring their subjects to comply even if these subjects do not regard authoritative directives as exclusionary reasons.

12. Raz, Joseph, “Facing Up: A Reply” (1989) 62 S Cal LR 1153 at 1164Google Scholar. As Raz notes at this point, functional arguments are not the only type of argument he invoked in support of his exclusionary reasons model.

13. For example, when Raz refers to authorities as mediating between people and primary reasons for action, the term mediating can be understood to contain the idea of preemption or exclusion, though there are also some textual indications that militate against this interpretation ( Raz, Joseph, Ethics in the Public Domain, rev’d paperback ed (Oxford: Clarendon Press, 1995) at 214–15)Google Scholar.

14. Or a phenomenological claim about authority, i.e., a claim about the way in which the concept of authority figures in our experience (see, e.g., Raz, supra note 3 at 40-45, 74-76). An examination of such claims extends beyond the confines of this article.

15. It might be thought that if, on the one hand, Raz is correct in saying that the idea of preemption is implicit in the concept of authority, and, on the other hand, no justificatory argument succeeds in showing that governments can ever generate such reasons, it would follow that governments can never be legitimate “authorities” (at least not in the full sense of the term). Even if so, however, this would not prove that governments can generate preemptive reasons.

16. Raz, supra note 3 at 74. He clarifies that such an argument cannot establish that all norms are exclusionary reasons. When using this type of argument, he focuses on rules of thumb and norms issued by an authority (ibid at 59-65).

17. Ibid at 62-63.

18. See Raz, supra note 1 at 47-57, 61. For purposes of this analysis I will assume with Raz that the justification of authority is the instrumental justification of improving conformity with reason.

19. Raz, supra note 13 at 215.

20. He notes that the existence of such directives in itself is not a reason for action, though the fact that other people are influenced by them may provide such reasons ( Raz, Joseph, Between Authority and Interpretation (Oxford: Oxford University Press, 2009) at 6 CrossRefGoogle Scholar).

21. Raz, supra note 3 at 62-64, 195; Raz, supra note 2 at 25; Raz, supra note 1 at 61; Raz, Joseph, ed, Authority (New York: New York University Press, 1990) at 10–11 Google Scholar; Raz, Joseph, “The Problem of Authority: Revisiting the Service Conception” (2006) 90 Minn LR 1003 at 1019Google Scholar.

22. Raz, supra note 1 at 59.

23. Raz, supra note 13 at 215; Raz, supra note 1 at 58-59.

24. See references in note 21.

25. Once more, the argument does not refer to coercive measures and the threat to use them.

26. Raz’s functional argument refers to authorities in general, not only legal authorities. Proposition F1 focuses on the legal facet of the argument.

27. Raz, supra note 1 at 58.

28. Raz, supra note 3 at 195. See also ibid at 63-64; Raz, Authority, supra note 21 at 5-6.

29. Raz, supra note 3 at 64. For further comments on coordination and exclusionary reasons, see ibid at 195; Raz, supra note 12 at 1191-93; Raz, Authority, supra note 21 at 10-11. In a vein similar to that of the above-quoted passages, Raz argues elsewhere by reference to an example: “[T]he reason for the validity of the rule is that it is best if club affairs are regulated by the committee which made the rule. That is presumably because, on the whole, if members follow the judgement of the committee their actions will track reason better than if they act on their best judgement without taking account of the judgement of the committee. Usually when this is the case it is so through a combination of two factors. First, the good judgement of the committee. And, second, the fact that it can secure desirable co-ordination among people, which, left to their own devices, the members are less likely to secure. These factors are … a reason for not second-guessing the decision of the committee. So if the committee, having had the opportunity to weigh the pros and cons of imposing the no-more-than-three-guests rule, has approved it then all members have reason not to challenge that judgement, and that means that they have reason not to act on the reasons for or against bringing a fourth guest. Rather, they should regard the rule as displacing the reasons which the committee was meant to consider in issuing the rule. That is what I mean when I say that the rule is an exclusionary reason. … If this example can be generalised, and I believe that it can, then we have an explanation of why rules are opaque, content-independent, autonomous reasons for action …. More than that, it makes it clear that often rules are valid protected reasons. QED.” ( Raz, Joseph, “Reasoning with Rules” (2001) 54 Curr Leg Prob 1 at 15)CrossRefGoogle Scholar.

30. Raz, supra note 1 at 53.

31. See clarification in note 26.

32. On one occasion, when Raz replies to a critique by Gerald Postema, he expresses a seemingly different approach to the relation between coordination difficulties and preemptive reasons: “[A]uthority can be useful in securing coordination in some circumstances, and since authoritative reasons have preemptive force, preemptive reasons can be useful in securing coordination. But the many examples of coordination without either the law or any other norms with preemptive force would give the lie to any suggestion that preemption explains the normative force of coordination schemes” ( Raz, Joseph, “Postema on Law’s Autonomy and Public Practical Reasons” (1998) 4 Legal Theory 1 at 12)CrossRefGoogle Scholar. On one possible understanding of this comment, Raz might be taken to mean that in circumstances where authority can help secure coordination, it is able to do so irrespective of its preemptive force. That is, while the reasons it provides are preemptive, this property is not essential to its ability to secure coordination. This stands in contrast with his arguments which were cited earlier and encapsulated in Proposition F2; as well as with other comments, such as these: “[The fact] that mandatory norms are exclusionary reasons is the key to understanding … the problems involved in justifying them” (Raz, supra note 3 at 76-77); “where there are advantages in having authorities … one needs the protected reason account to show what they are” (ibid at 195). The contrast sharpens when one brings to mind the following proviso of Raz: “In fact, in my view, political authorities are justified primarily on grounds of coordination, though these are mixed with considerations of expertise” (Raz, supra note 12 at 1164. See also ibid at 1180; Raz, supra note 1 at 30-31, 56; Raz, supra note 13 at 349). When we combine this proviso with the proposition that preemptive force is not essential to the ability of authorities to secure coordination, it follows that authorities could fulfill their primary function without having preemptive force. This is incompatible not only with F2 but also with F1. In other words, this would mean that Raz hardly offers any functional argument for the preemption thesis. Now, since he himself states that he (inter alia) “tried to give … functional reasons” in support of his notion of exclusionary reasons (Raz, supra note 12 at 1164), and since I believe that his functional argument ultimately does contain an important element of truth, I will proceed on an interpretation that includes coordination reasons as part of the functional argument, consistently with Raz’s previously cited comments.

33. Hart, HLA, Essays on Bentham (Oxford: Clarendon Press, 1982) at 254–55 Google Scholar; Raz, supra note 1 at 35-37; Raz, “Reasoning with Rules”, supra note 29 at 8-15. Elsewhere I classified this sense of content-independence as “weak content-independence” ( Gur, Noam, “Are Legal Rules Content-Independent Reasons?” (2011) 5 Problems 175)Google Scholar.

34. As will be noticed from the following lines, there is a certain overlap between the attributes that are said here to endow legal directives with content-independent weight and the attributes that Raz believes to ground content-independent exclusionary reasons.

35. See Regan, supra note 8 at 1004-18, 1086-95; Hurd, supra note 7 at 1667-77.

36. See Regan, supra note 8 at 1025-31.

37. I will inquire further into the sources and essence of law-related reasons in Section II.B.

38. Raz, supra note 1 at 67-68; Regan, supra note 8 at 1086-87.

39. Obviously, success in this context is a matter of degree. But imagine that the available information indicates only whether a given decision had a positive or a negative impact on Jones’s capital over a certain period.

40. Regan, supra note 8 at 1086-87, 1089 n 210.

41. Cf ibid at 1086; Raz, supra note 1 at 68.

42. See text accompanying notes 9 and 36-37.

43. That is, compelling and straightforward enough to offset the weight that otherwise tips the balance in favor of the analyst’s judgment by virtue of his expertise.

44. Raz, supra note 1 at 67-69.

45. Ibid at 68-69.

46. See text accompanying notes 55-61.

47. See text accompanying note 23.

48. Raz, supra note 13 at 215; Raz, supra note 1 at 58-59.

49. Raz, supra note 1 at 57-59.

50. A distinction that Raz does recognize at other points (see, e.g., ibid at 30-31, 48-51).

51. Ibid at 41, 47.

52. See references in note 33.

53. Which would not mean we had little or no reason to make a choice between the two and to regulate our behavior consistently with that choice.

54. See text accompanying notes 38-43.

55. The following contention is modeled after an argument of Raz (supra note 1 at 67-69).

56. I will discuss the likelihood for this conditional clause to actually obtain in the legal context (Section II.B.).

57. See note 43.

58. Regan, supra note 8 at 1089. See generally ibid at 1086-95.

59. See ibid at 1086-89.

60. See ibid at 1089, n 211. See also Perry, Stephen R, “Second-order Reasons, Uncertainty and Legal Theory” (1989) 62 S Cal LR 913 at 934-36, 941Google Scholar (where the author seems to proceed on a similar premise).

61. These problems have been left out of my analysis thus far in order to facilitate a sufficiently discriminative treatment of the functional argument which will help us distinguish what part of this argument is well grounded and what part of it is not.

62. See text accompanying notes 38-43.

63. See Schauer, Frederick, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (Oxford: Clarendon Press, 1991) at 98 Google Scholar; Alexander, Larry, “Law and Exclusionary Reasons” (1990) 18 Phil Topics 5 at 9-10CrossRefGoogle Scholar. Cf Shapiro, Scott, “Authority” in Coleman, Jules L and Shapiro, Scott, eds, The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002) at 420–23 Google Scholar (where the author argues that Bayes Theorem entails that an agent who follows the above method of decision-making under conditions of uncertainty would not be able to harness the epistemic benefits of authority).

64. My emphasis on the relevance of biases in this context corresponds with some of Hume’s arguments in his “Of the Origin of Government” (in Hume, David, A Treatise of Human Nature, Selby-Bigge, LA & Nidditch, PH, eds, (Oxford: Clarendon Press, 1978)Google Scholar bk III, pt II, sec VII).

65. By focusing on biases that law aims to counteract and turning them into the main anchor for my argument against the weighing model, I in effect narrow the argument’s scope to the legal domain (though I am inclined to believe that much of it is applicable to rules in general). This signifies that, insofar as those biases have lesser relevance, for example, in the context of using the opinions of a financial analyst (to which some of my foregoing illustrations make reference), the weighing model might be more appropriate in that context than in the legal domain.

66. Justifying authority by reference to fallibilities that are essentially connected with subjects’ environment and mode of decision-making is preferable to seeking the justification in people’s fallibility simpliciter, partly because the latter is, in various ways, nearly self-defeating. If the issue is fallibility simpliciter, how can those who hold public offices be sure that their own decisions are correct? It would not be a satisfactory reply that people who have legitimate authority have it by virtue of some individual qualities that render them less fallible and more informed than their subjects. For if subjects are more fallible and less informed individuals, how can they ever form a trustworthy judgment about whether the relevant officials are competent enough to issue correct directives? How can subjects ever tell that the relevant officials have legitimate authority and that their directives can be trusted? Such questions turn out to be less pertinent once it is noticed that an important part of the justification of authority lies with deferential environments and modes of decision-making, rather than personal qualities. For it is entirely conceivable that subjects can occasionally step back from their everyday environment and mode of decision-making and, from a more reflective, neutral, and wide perspective, assess the worthiness of an authority and its rules (cf Alexander, Larry, “The Gap” (1991) 14 Harv J L & Pub Pol’y 695 at 696)Google Scholar.

67. See, e.g., Aristotle, , Nicomachean Ethics, Irwin, Terence, trans (Indianapolis, IN: Hackett, 1985) at 1137 Google Scholarb; Hart, HLA, The Concept of Law, 2d ed (Oxford: Oxford University Press, 1994) at 21 Google Scholar; Fuller, Lon L, The Morality of Law, 2d ed (New Haven, CT: Yale University Press, 1969) at 33-34, 46-49Google Scholar. The case of judicial decisions is more complicated in this respect. In contrast to private decisions, they are exclusively other-regarding, but unlike typical legislative and regulatory acts they are particularistic, in the sense that they are primarily addressed to specific, named individuals (or corporations) and concern specific disputes. Nonetheless, judicial decisions sometimes have the status of a precedent with binding force in future cases, and to this extent their function bears some resemblance to that of legislative or regulatory acts. Another relevant difference between judicial and private decision-making is that the former paradigmatically pertains to past events. In this sense, it takes place in conditions cooler than the ones in which daily decisions on immediate actions are normally made.

68. See Fuller, ibid at 35, 51-52; Hart, ibid at 23.

69. See, e.g., Baumhart, Raymond, An Honest Proft: What Businessmen Say About Ethics in Business (New York: Holt, Rinehart & Winston, 1968) at 20–25 Google Scholar; Larwood, Laurie & Whittaker, William, “Managerial Myopia: Self-Serving Biases in Organizational Planning” (1977) 62 J Appl Psychol 194 CrossRefGoogle Scholar; Svenson, Ola, “Are We All Less Risky and More Skillful Than Our Fellow Drivers?” (1981) 47 Acta Psychol 143 CrossRefGoogle Scholar; Brown, Jonathon D, “Evaluations of Self and Others: Self-Enhancement Biases in Social Judgments” (1986) 4 Social Cognition 353 CrossRefGoogle Scholar; Kruger, Justin & Dunning, David, “Unskilled and Unaware of It: How Difficulties in Recognizing One’s Own Incompetence Lead to Inflated Self-Assessment” (1999) 77 J Pers Soc Psychol 1121 CrossRefGoogle Scholar. See also Cross, K Patricia, “Can, Not, But Will College Teaching Be Improved?” (1977) New Directions for Higher Education 1 at 8-12CrossRefGoogle Scholar.

70. Along with other, cognitive and situational factors—see Dunning, David, Meyerowitz, Judith A & Holzberg, Amy D, “Ambiguity and Self-Evaluation: The Role of Idiosyncratic Trait Definitions in Self-Serving Assessments of Ability” (1989) 57 J Pers Soc Psychol 1082 CrossRefGoogle Scholar; Alicke, Mark D, et al, “Personal Contact, Individuation, and the Better-Than-Average Effect” (1995) 68 J Pers Soc Psychol 804 CrossRefGoogle Scholar; Kruger & Dunning, supra note 69; Kruger, Justin, “Lake Wobegon Be Gone! The ‘Below-Average Effect’ and the Egocentric Nature of Comparative Ability Judgments” (1999) 77 J Pers Soc Psychol 221 CrossRefGoogle Scholar; Dunning, David, et al, “Why People Fail to Recognize Their Own Incompetence” (2003) 12 Curr Dir Psychol Sci 83 CrossRefGoogle Scholar.

71. See citations in note 69.

72. Svenson, supra note 69. See also Preston, Caroline E & Harris, Stanley, “Psychology of Drivers in Traffic Accidents” (1965) 49 J Appl Psychol 284 CrossRefGoogle ScholarPubMed.

73. Baumhart, supra note 69.

74. Larwood & Whittaker, supra note 69.

75. Cross, supra note 69.

76. Kruger & Dunning, supra note 69 at 1124-25. Cf Hobbes, Thomas, Leviathan, Tuck, Richard, ed (Cambridge: Cambridge University Press, 1996) ch XIII at 87Google Scholar, noting: “[S]uch is the nature of men, that howsoever they may acknowledge many others to be more witty, or more eloquent, or more learned; Yet they will hardly believe there be many so wise as themselves: For they see their own wit at hand, and other mens [sic] at a distance”.

77. Messick, David M & Sentis, Keith P, “Fairness and Preference” (1979) 15 J Exp Soc Psychol 418 CrossRefGoogle Scholar; Messick, David M, “Social Interdependence and Decision Making” in Wright, George, ed, Behavioral Decision Making (New York: Plenum, 1985) at 94–100 Google Scholar; Thompson, Leigh & Loewenstein, George, “Egocentric Interpretations of Fairness and Interpersonal Conflict” (1992) 51 Organ Behav Hum Dec 176 CrossRefGoogle Scholar; Babcock, Linda & Loewenstein, George, “Explaining Bargaining Impasse: The Role of Self-Serving Biases” (1997) 11 J Econ Perspect 109 CrossRefGoogle Scholar; Dawson, Erica, Gilovich, Thomas & Regan, Dennis T, “Motivated Reasoning and Performance on the Wason Selection Task” (2002) 28 Pers Soc Psychol Bull 1379 CrossRefGoogle Scholar. See further: Pogarsky, Greg & Babcock, Linda, “Damage Caps, Motivated Anchoring, and Bargaining Impasse” (2001) 30 J Leg Stud 143 CrossRefGoogle Scholar.

78. Dicey, Albert V, Lectures on the Relation Between Law and Public Opinion in England During the Nineteenth Century, 2d ed (London: Macmillan, 1914) at 15.Google Scholar

79. Messick & Senits, supra note 77.

80. Ibid at 428, 432.

81. Ibid at 428-29, 432.

82. For example, coordination difficulties, lack of information about collective needs, and deliberate egoism.

83. Cf John Locke’s comment that in the state of nature “though the law of Nature be plain and intelligible to all rational Creatures; yet Men being biassed by their Interest … are not apt to allow of it as a Law binding to them in the application of it to their particular Cases” ( Locke, John, Two Treatises of Government, 2d ed, Laslett, Peter, ed (Cambridge: Cambridge University Press, 1967)Google Scholar bk II, ch IX, para 124).

84. This is not to deny that, in some situations, ‘the invisible hand’ of the market can effectively operate so that self-interested individual behavior will incidentally promote collective welfare. The above discussion, however, focuses on other situations: ones in which entirely free market conditions would fail to produce collectively desirable results and some degree of regulatory intervention is called for.

85. Certainly, there is an extent to which legislation is motivated and influenced by sectorial interests, which are, in some sense, subject to self-serving biases (the “self” being a sector rather than an individual). However, insofar as the relevant system allows adequate representation of all sectors, and insofar as it contains checks and balances capable of counteracting overly powerful Pressure groups, there is not much that can be said against representation of sectorial interests.

86. CLS proponents would respond to the above remark (note 85) by saying that legal systems never or only rarely allow adequate representation of weak socioeconomic groups. The law and its delegates, they would say, are systematically biased against those groups. Note however that, even if assumed to be true, this premise does not necessarily undermine the present argument against the weighing model. For it to undermine the argument, it must also be true that the negative consequences that would come about if this model were to prevail are ‘the lesser evil’ compared to the relative inequities that ordinary legal systems generate or preserve. This premise seems questionable at best, and would seem particularly implausible to those who would agree with me that if the weighing model were to prevail, law would be rendered dysfunctional and anarchy, with all its dreadful implications, would probably take its place (see text accompanying note 119).

87. Tversky, Amos & Kahneman, Daniel, “Availability: A Heuristic for Judging Frequency and Probability” (1973) 5 Cognitive Psychol 207 CrossRefGoogle Scholar; Tversky, Amos & Kahneman, Daniel, “Judgment under Uncertainty: Heuristics and Biases” (1974) 185 Science 1124 CrossRefGoogle ScholarPubMed.

88. Tversky & Kahneman, “Availability”, supra note 87 at 207-08.

89. Ibid at 208; Tversky & Kahneman, “Judgment”, supra note 87 at 1127.

90. Tversky & Kahneman, “Judgment”, supra note 87 at 1124. This may be especially useful in everyday dealings in which people have only a limited amount of time and vigor for investigation prior to action and rarely have statistical data on hand.

91. Ibid.

92. There are, of course, also indirect means of communication by which im Pressions can be conveyed—notably, mass media. But this usually does little to correct, and sometimes even reinforces, the potentially distorting influence of availability, because frequency of occurrence does not seem to be one of the leading criteria by which media agencies select their reported items (see text accompanying note 96).

93. Lichtenstein, Sarah, et al, “Judged Frequency of Lethal Events” (1978) 4 J Exp Psychol: Human Learning & Memory 551 at 575Google Scholar.

94. See ibid; Tversky & Kahneman, “Availability”, supra note 87 at 230; Sunstein, Cass R, Risk and Reason: Safety, Law and the Environment (Cambridge: Cambridge University Press, 2002) at 33.Google Scholar

95. Tversky & Kahneman, “Availability” supra note 87 at 228-29; Tversky & Kahneman, “Judgment” supra note 87 at 1127.

96. Sunstein, supra note 94 at 50-52. See generally ibid at 33-35, 78-98.

97. Tversky & Kahneman, “Availability”, supra note 87 at 209; Tversky & Kahneman, “Judgment”, supra note 87 at 1127.

98. Tversky & Kahneman, “Availability”, supra note 87 at 211-12.

99. Ibid at 212. Furthermore, each of these letters was thought by a majority of the participants to be more likely to appear at the start of a word than as the third letter in it (ibid). The study included additional experiments denoting a similar tendency.

100. Lichtenstein, supra note 93. See discussion in Slovic, Paul, The Perception of Risk (London: Earthscan, 2000) at 106-07Google Scholar; Sunstein, supra note 94 at 34.

101. Lichtenstein, supra note 93 at 562-71; Slovic, ibid.

102. Lichtenstein, supra note 93 at 562-67; Slovic, ibid at 107. A corresponding tendency appeared when participants were given pairs of lethal events and asked which event is the more frequent in each pair: the bulk of them, for example, incorrectly judged accidents to be a more frequent cause of death than stroke, and homicide to be more frequent than suicide (Lichtenstein, supra note 93 at 553-59).

103. This is not to suggest that people could or should generally dispose of the availability heuristic. I am only pointing out that we should not settle for this heuristic in specific situations where (1) it predictably produces errors that are consequential or common enough (or both), and (2) more accurate assessment methods can be relied upon with comparatively small costs and minimal adverse effects.

104. Moreover, if they have not witnessed instances of the relevant physical damage or disease, cognitive availability may further diminish.

105. There are also cases in which availability produces the opposite effect; e.g., a recent experience of an accident or overly dramatic news reports about a certain peril may lead to exaggerated fears and unduly deter people from engaging in normal activities (Sunstein, supra note 94 at 33-35, 50-52, 78-98).

106. True, legislators in democratic systems, as representatives of the public, should be and often are responsive to its preferences. But this in no way exempts them from the responsibility to inquire into relevant facts and consider them when exercising their judgment. And when legislators have reasons to believe that the choice of private actors rests on a biased perception of the facts, it will sometimes be appropriate to use law so as to restrict the range of options open to them. Similar points are emphasized by Sunstein (ibid).

107. The availability heuristic is not the only source of errors in people’s intuitive perception of risks and probabilities. For a discussion of related error-producing cognitive and emotional phenomena, see ibid at 28-49. See also Guttel, Ehud & Harel, Alon, “Matching Probabilities: The Behavioral Law and Economics of Repeated Behavior” (2005) 72 U Chicago LR 1197 Google Scholar.

108. See, e.g., Ainslie, George, “Specious Reward: A Behavioral Theory of Impulsiveness and Impulse Control” (1975) 82 Psychol Bull 463 CrossRefGoogle Scholar; Herrnstein, Richard J, “Rational Choice Theory: Necessary but Not Sufficient” (1990) 45 Am Psychol 356 CrossRefGoogle Scholar; Winston, Gordon C & Woodbury, Richard G, “Myopic Discounting: Empirical Evidence” in Kaish, Stanley & Gilad, Benjamin, eds, Handbook of Behavioral Economics (Greenwich, CT: JAI Press, 1991) vol 2B at 325 Google Scholar; Kirby, Kris N & Herrnstein, Richard J, “Preference Reversals due to Myopic Discounting of Delayed Reward” (1995) 6 Psychol Sci 83 CrossRefGoogle Scholar; Kirby, Kris N, “Bidding on the Future: Evidence Against Normative Discounting of Delayed Rewards” (1997) 126 J Exp Psychol Gen 54 CrossRefGoogle Scholar.

109. Herrnstein, supra note 108 at 359.

110. Hume, supra note 64 at 536.

111. Herrnstein, supra note 108 at 358; Kirby, supra note 108 at 54-55 and n 2.

112. Kirby, ibid at 55 n 2.

113. Ibid at 59-68; Ainslie, supra note 108; Herrnstein, supra note 108 at 359; Kirby & Herrnstein, supra note 108.

114. Herrnstein, ibid at 360; Kirby & Herrnstein, ibid at 83-84; Kirby, supra note 108 at 54-55.

115. See Kirby & Herrnstein, ibid (reporting a series of experiments in which individuals were presented with choices of the above form) and Herrnstein, ibid at 358 (discussing a similar example). See also Solnick, Jay H, et al, “An Experimental Analysis of Impulsivity and Impulse Control in Humans” (1980) 11 Learning & Motivation 61 CrossRefGoogle Scholar; Ainslie, George & Haendel, Varda, “The Motives of the Will” in Gottheil, Edward, et al, eds, Etiologic Aspects of Alcohol and Drug Abuse (Springfeld, IL: Charles C Thomas, 1983) at 119–40 Google Scholar; Millar, Andrew & Navarick, Douglas J, “Self-Control and Choice in Humans” (1984) 15 Learning & Motivation 203 at 213-17CrossRefGoogle Scholar.

116. Kirby, supra note 108 at 54-55; Kirby & Herrnstein, ibid at 83.

117. I have analyzed each of these biases separately. In practice, however, the situations law addresses are often situations in which some or all of these biases may operate together in a mutually reinforcing manner. Note further that I do not claim to have provided an exhaustive list of the biases law helps to overcome, nor do I suggest that the social problems law addresses can be fully explained in terms of biases.

118. Pronin, Emily, Lin, Daniel Y & Ross, Lee, “The Bias Blind Spot: Perception of Bias in Self Versus Others” (2002) 28 Pers Soc Psychol Bull 369 CrossRefGoogle Scholar; Pronin, Emily, Gilovich, Tomas & Ross, Lee, “Objectivity in the Eye of the Beholder: Divergent Perceptions of Bias in Self Versus Others” (2004) 111 Psychol Rev 781 CrossRefGoogle ScholarPubMed; Ehrlinger, Joyce, Gilovich, Thomas & Ross, Lee, “Peering Into the Bias Blind Spot: People’s Assessment of Bias in Themselves and Others” (2005) 31 Pers Soc Psychol Bull 680 CrossRefGoogle Scholar; McPherson-Frantz, Cynthia, “I AM Being Fair: The Bias Blind Spot as a Stumbling Block to Seeing Both Sides” (2006) 28 Basic Appl Soc Psychol 157 CrossRefGoogle Scholar. See also Friedrich, James, “On Seeing Oneself as Less Self-Serving Than Others: The Ultimate Self-Serving Bias?” (1996) 23 Teaching of Psychology 107 CrossRefGoogle Scholar. N.B. The observation is not that people never acknowledge their biases or always underestimate their extent. Rather, what has been observed is a general tendency; a pattern that characterizes most people’s self-perception in most of the cases where they show biases. Further, it is possible that education about biases can improve people’s ability to recognize their own biases in retrospect or even reduce their effect in the future. What remains doubtful is, first, that such an improvement is easy to attain or sustain; second, that setting up a large-scale, bias-related educational scheme is a feasible project; and, third, that people can eliminate their biases altogether by means of knowledge and reasoning alone.

119. The authorization is unlimited not in a sense that implies normative indeterminacy, i.e., the lack of an answer to the question of what the right thing to do is, but rather in the sense that no other normative curbs are placed on the weighing process so as to reduce the risk of error on the actor’s part.

120. Raz, “Postema on Law’s Autonomy”, supra note 32 at 12.

121. See text accompanying notes 69-117.

122. Nothing in what I have said is meant to suggest that people should generally refrain from evaluating the law and from weighing its merits and demerits (if for theoretical purposes or for practical ones, such as exercising their democratic rights in order to bring about a change in the law or the regime or, when necessary, resorting to other forms of resistance). The fulcrum of my argument has been biases and fallibilities connected with the environment and mode of decision-making in which we operate as subjects of the law in the course of our everyday activity. And it is these environment and mode of decision-making that demarcate the scope of my objection to the weighing model: it is only an objection against using this model as our ordinary method of reasoning for purposes of everyday activity under the law. See also my comment on this issue in note 66.

123. Raz, supra note 1 at 53. See also text accompanying note 18.

124. See Raz, supra note 1 at 53, 70-80, 99-104; Raz, supra note 13 at 347, 350.

125. Raz, supra note 1 at 73-74, 77-78, 104; Raz, supra note 13 at 347, 350. But he concurs that with regard to some rules of law the obligation to obey is likely to apply equally to all citizens (ibid at 350).

126. Raz, supra note 1 at 68-69, 73; Raz, supra note 13 at 350; Raz, “The Problem of Authority”, supra note 21 at 1027.

127. Raz, supra note 1 at 74. See also ibid at 77-78.

128. It might be objected that the conditions set forth by Raz’s ‘service conception of authority’ concern only the justification of authority, as distinct and separate from the criteria to which citizens should have recourse in their practical decision-making. But it would be difficult to theoretically defend that separation given the premises of Raz’s conception of authority. Raz endorses the view that the legitimacy of an authority is correlated with a duty to obey it (ibid at 23-37). For him, if (and only if) A has legitimate authority over B, B has a duty to obey A. So he would not be able to sever the connection between citizens’ decision-making and the justification of authority without being forced to say that the question of whether B has a duty to obey A is not relevant for B’s practical decision-making—which seems to be an unsupportable proposition.

129. See text accompanying notes 69-76.

130. For example, also relevant here is the phenomenon dubbed in French déformation professionnelle, i.e., the tendency for people to view things from the narrow perspective of their own profession, while failing to give sufficient attention to the wider picture.

131. Raz, at least at one point, alludes to this possibility (Raz, supra note 1 at 75).

132. The argument refers to the function authorities are meant to perform by means of normative guidance, rather than coercive measures or the threat to use them.

133. As noted in text following note 21, although inducement of law compliance by means of punishment is part of the antidote to these common biases, the impracticality and unattractive-ness of a system of governance that would depend for its efficacy solely or mainly on the use of coercive force and on the fear of punishment, explain why our method of practical reasoning regarding law should be such that minimize the effect of these biases.

134. The possibility of retaining the notion of preemption without a piecemeal test of legitimacy—meaning that our practical judgment may be preempted over a scope which is as wide as the ambit of typical legal systems—seems to me hardly palatable in terms of its implications for individual autonomy.

135. Gur, supra note 7.