Abstract
[Extract] Legal reasoning is commonly regarded as a reflective process, in which legal actors – be they ordinary citizens or judges and other legal officials – consciously incorporate legal norms into their deliberations when deciding what to do. However, this picture is misleading. The primary influence of legal norms on practical decision making takes place at a pre-reflective level. In this chapter, I offer an account of this pre-reflective dimension of law. I begin by examining the pre-reflective foundations of normative reasoning generally, and then turn to the place of legal norms within that picture. I contend that both citizens and judges routinely make pre-reflective judgements about the content of legal norms. Furthermore, their initial engagement with those norms invariably takes place within a broader context of pre-reflective values. I then examine the implications of this account for traditional understandings of legal reasoning. I argue that the pre-reflective dimension of law undermines attempts to draw a sharp distinction between legal and other forms of normative deliberation.
Original language | English |
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Title of host publication | New Waves in Philosophy of Law |
Editors | Maksymilian Del Mar |
Place of Publication | Hampshire |
Publisher | Palgrave Macmillan |
Chapter | 4 |
Pages | 103-122 |
Number of pages | 20 |
ISBN (Electronic) | 9780230316645 |
ISBN (Print) | 9780230276604 |
Publication status | Published - 2011 |
Externally published | Yes |