Legal Reasoning as Practical Reason

John Finnis

in Reason in Action

Published in print April 2011 | ISBN: 9780199580057
Published online September 2011 | e-ISBN: 9780191729379 | DOI:
Legal Reasoning as Practical Reason

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Understanding morality and understanding legal, especially judicial, reasoning each require attention to the distinctions between reason and feelings, and between making and doing. In clarifying these, this chapter considers the denial of objective goods by ‘Critical Legal Studies’; the confusion induced by ‘game’ or ‘decision’ or ‘rational choice’ theory's technological understanding of rational choice; and Ronald Dworkin's exaggeration of the determinacy of affirmative moral obligations and oversight of the incommensurability between moral and other kinds of criteria for judgment and choice. Legal system and reasoning exists in a tension between the moral or existential order and the technical order (the third and fourth of the four kinds of order and intellectual discipline). Understanding incommensurability also grounds the acknowledgement of exceptionless moral norms (‘absolutes’) that give legal reasoning its backbone.

Keywords: rational choice; four orders; Dworkin; incommensurability; moral absolutes; legal reasoning; legal system

Chapter.  8918 words. 

Subjects: Jurisprudence and Philosophy of Law

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