The nature of human practices and the importance of practical reason: why law cannot be a moral practice only

Abstract

ABSTRACT I will advance two criticisms and one comment to Hershovitz's Law is a Moral Practice. First, I will argue that the idea that law is a moral practice because it rearranges our moral relationships tends to be circular, unless a conception of practical reason connected to morality and human practices are advanced. Second, I will problematise the predominance of a backward-looking legal reasoning that focuses on rights and wrongs only. Finally, I will explore Bernard Williams diagnosis regarding ‘the problem of the morality system’ and scrutinise how his reflections might have implications for the key premises advanced by Hershovitz. I demonstrate that any explanation of law as moral practice needs to explain the role of our engagement with the law as the kind of creatures we are, i.e. rational creatures. This means that any account of the relationship between law and morality that does not explain the character of practical reason and how it engages with the law is deficient and unsatisfactory. Hershovitz is eager to show that law cannot be neutral and he tells us that it is instead a moral practice that deals with rights and wrongs in a robust manner. However, his account cannot explain to us how the judge and legislator make this possible through the law. Therefore, within this conception, there is no mediation or bridge between law and moral practice qua rational (and not qua practice). Hershovitz seems to discard the ancient philosophical platitude, namely that we cannot understand and engage with right and wrong, good or bad, except through the mediation of reason.