Pre-reflective law

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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 languageEnglish
Title of host publicationNew Waves in Philosophy of Law
EditorsMaksymilian Del Mar
Place of PublicationHampshire
PublisherPalgrave Macmillan
Chapter4
Pages103-122
Number of pages20
ISBN (Electronic)9780230316645
ISBN (Print)9780230276604
Publication statusPublished - 2011
Externally publishedYes

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    Crowe, J. (2011). Pre-reflective law. In M. Del Mar (Ed.), New Waves in Philosophy of Law (pp. 103-122). Palgrave Macmillan.