Legal Facts and Reasons for Action: Between Deflationary and Robust Conceptions of Legal Normativity
Forthcoming in Nicoletta Bersier, Christoph Bezemek, and Frederick Schauer (eds.), The Normative Force of The Factual: Legal Philosophy Between Is and Ought (Springer Law and Philosophy Library, 2019)
Posted: 19 Dec 2018
Date Written: October 10, 2018
This chapter considers whether law’s requirements can constitute reasons for action independently of the merits of the legal requirement at hand. While jurisprudential opinion on this question is far from uniform, sceptical (or ‘deflationary’) views are becoming increasingly dominant. Such views typically contend that, while the law can be indicative of pre-existing reasons, or can trigger pre-existing reasons into operation, it cannot constitute new reasons. This chapter offers support to a somewhat less sceptical (but still qualified) position, according to which the fact that a legal requirement has been issued can be a reason for action, yet one that is underpinned by bedrock values which (under certain conditions and constraints) law is apt to serve. Notions discussed here include a value-based conception of reasons as facts (Section I); a distinction between complete and incomplete reasons (Section II); and David Enoch’s idea of triggering reason-giving (Section III). Following a discussion of criticism against the view adopted here (Section IV), the chapter concludes by considering some more ‘robust’ conceptions of law’s reason-giving capacity (Section V).
Keywords: Jurisprudence; legal normativity; reasons for action; value-based conception of reasons; Joseph Raz; David Enoch
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