Must Laws Be Motivated by Public Reason?

Public Reason and Courts (Silje Langvatn, et al. eds., Cambridge University Press, Forthcoming)

Virginia Public Law and Legal Theory Research Paper No. 2019-41

18 Pages Posted: 7 Aug 2019

See all articles by Micah Schwartzman

Micah Schwartzman

University of Virginia School of Law

Date Written: August 5, 2019

Abstract

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

Suggested Citation

Schwartzman, Micah, Must Laws Be Motivated by Public Reason? (August 5, 2019). Public Reason and Courts (Silje Langvatn, et al. eds., Cambridge University Press, Forthcoming); Virginia Public Law and Legal Theory Research Paper No. 2019-41. Available at SSRN: https://ssrn.com/abstract=3432637

Micah Schwartzman (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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