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.
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Acknowledgments
Funding for this research project has been provided by the Alexander von Humboldt Foundation under the programme Reintegration Grant, which gave me the invaluable opportunity to spend a three-month research stay at the University of Kiel during which stay this essay was finalised. I wish to express my indebtedness to Robert Alexy, who generously hosted me during my visit at the University of Kiel by so enabling me to work towards the completion of this contribution in a most conducive environment. I should also like to thank Carla Bagnoli, Francesco Belvisi, Thomas Casadei, Stanley L. Paulson, Filippo Valente, Gianfrancesco Zanetti and the anonymous reviewers for this journal, who offered helpful comments and critical remarks on previous versions of this essay. Needless to say, the responsibility for the views I express here, as well as for any errors, rests solely with me.
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Bertea, S. A Foundation for the Conception of Law as Practical Reason. Law and Philos 34, 55–88 (2015). https://doi.org/10.1007/s10982-013-9198-x
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DOI: https://doi.org/10.1007/s10982-013-9198-x