Gardner on Legal Reasoning
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In Chapters 2, 3 and 7 of his new book, Law as a Leap of Faith, John Gardner provides the elements of an account of legal reasoning. It is on the basis of this account that Gardner defends or supports some of the most important theses of his book, viz. theses pertaining to how law can be made, to the relation between law and morality, and to the legitimacy of judicial law-making. A central element of Gardner’s account is a distinction (suggested originally by Joseph Raz) between two forms of legal reasoning, namely, reasoning about the law and reasoning according to law. In this paper I intend to describe and evaluate Gardner’s account. Among the critical remarks that will appear in the paper is the claim that Gardner’s concept of reasoning according to law is overly inclusive.
KeywordsMoral Reasoning Legal Actor Moral Norm Legal Norm Legal Reasoning
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For helpful comments on earlier versions of this paper I would like to thank Luís Duarte d’Almeida, Ben Hamby, Lucas Miotto, Stefan Sciaraffa, and a referee for Law and Philosophy.