Pre-reflective law

[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.