A Foundation for the Conception of Law as Practical Reason

Stefano Bertea

doi:10.1007/s10982-013-9198-x

Abstract

This essay discusses a foundation of the connection argued to exist between law and practical reason that has proved to be highly influential and debated in contemporary legal philosophy – Alexy’s. After reconstructing Alexy’s conception of practical reason as well as its foundation, I criticise the weak transcendental-pragmatic argument Alexy uses to ground the authority of practical reason. This argument, I argue, can only show why occasionally, as opposed to necessarily, we ought to follow the guidance of practical reason, and consequently makes the authority of practical reason ultimately dependent on an individual decision. By building on this criticism, in the second part of the essay I introduce and discuss an alternative argument that, by appealing to the idea of constitutive necessity, can provide a non-contingent basis for the validity of practical reason.

Highlights

Hart’s powerful criticism of the “gunman model” of law—on which law is understood as a set of commands backed by sanctions or by the threat of harm—it has become increasingly standard in legal philosophy to accept that some form of conceptually necessary relation obtains between law and practical reason
Law is conceived as a normative system meant to provide practical guidance, with the result that legal norms figure in some essential way into our reasons for action. It has been argued on this basis that law is inseparable from practical reason in the specific sense of being a particular instantiation, or species, of it
Alexy does claim that we need an overall discursive disposition to treat others as partners in argument if we are to be recognized as participants in that basic form of life; that is, we have to generally espouse and follow the basic principles and standards of practical reason if we want to consider ourselves partners in discourse

Summary

Introduction

It is only for those of us who express an interest in correctness—for those of us who are committed to consistently participating in the basic form of human life as framed by the discursive practice of argumentation—that our satisfying what practical reason demands of us in Alexy’s weak transcendental-pragmatic argument becomes a matter of necessity.

Results

Conclusion