Review of Noam Gur, Legal Directives and Practical Reasons

24 Pages Posted: 8 May 2020

Date Written: April 14, 2020

Abstract

In his book Legal Directives and Practical Reasons, Noam Gur considers ways that practical reasons provided by legal directives may interact with moral and other types of practical reasons. He considers, but ultimately rejects, two important models of such interaction, namely, (i) Joseph Raz’s pre-emption thesis, according to which an authoritative directive provides the agent with a (first-order) reason to perform the relevant action and a (second-order, exclusionary) reason to disregard certain, perhaps all, non-legal reasons against performing the action, and its main competitor, (ii) the weighing model, which has it that all relevant reasons, non-legal as well as legal, carry normative weight, and that the agent ought to act in accordance with the balance of those reasons. Instead, Gur defends what he calls the dispositional model, according to which the existence of a reasonably just legal system that also comports with the ideal of the rule of law constitutes a reason for those who are subject to its authority to adopt (what Gur calls) a law-abiding attitude, which includes an overridable disposition to comply with legal directives.

In defending the dispositional model, Gur takes himself to be tracing a middle course between the above-mentioned models, arguing that an agent who acts in accordance with the dispositional model will comply with legal directives less often than an agent who follows the pre-emption thesis, but more often than an agent who follows the weighing model. He then argues that the dispositional model is preferable to the other two models, on the grounds that it strikes a better balance than they do between considerations that favor treating legal directives as binding (the pre-emption thesis) and considerations that favor acting in accordance with a case-specific assessment of legal directives in the situation in which they apply (the weighing model).

I give the book my highest recommendation. The topic of the book is both interesting and important, the discussion of the various questions is at all times subtle and illuminating, and in addition, Gur is a very good stylist. Nevertheless, I do offer a few critical comments. Among other things, I point to the absence of a systematic discussion of the precise question that Gur aims to answer in the book and identify some difficulties in the main arguments adduced by Gur against the pre-emption thesis and the weighing model and in favor of the dispositional model. In addition, I suggest that that whereas the pre-emption thesis and the weighing model aim to lay down a criterion of correctness, the dispositional model is best understood as aiming instead to provide the agent with a method for deliberation.

Keywords: legal norms, practical reasons, reasons for action, exclusionary reasons, authority, Joseph Raz, dispositions, attitudes

Suggested Citation

Spaak, Torben, Review of Noam Gur, Legal Directives and Practical Reasons (April 14, 2020). Available at SSRN: https://ssrn.com/abstract=3575709 or http://dx.doi.org/10.2139/ssrn.3575709

Torben Spaak (Contact Author)

Stockholm University ( email )

S-106 91 Stockholm
Sweden
46 8 16 45 89 (Phone)
46 8 612 41 09 (Fax)

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