Must Laws Be Motivated by Public Reason?
Public Reason and Courts (Silje Langvatn, et al. eds., Cambridge University Press, Forthcoming)
18 Pages Posted: 7 Aug 2019
Date Written: August 5, 2019
When courts exercise judicial review, should they invalidate laws that are not motivated by public reason? For proponents of public reason, a standard response might be that laws not motivated by public reason are impermissible under the liberal principle of legitimacy. But this response must confront the permissibility objection, which holds that a law’s motivation is irrelevant to its moral permissibility. Against this objection, this chapter defends a motivational requirement for purposes of judicial review. In some cases, an agent’s motivation can be relevant to the permissibility of the agent’s actions. This chapter also argues that laws with mixed motives, both nonpublic and public, may be permissible, but courts have reason to give such laws careful scrutiny in determining whether they are publicly justified.
Keywords: public reason, motivation, permissibility, legitimacy, liberalism
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