عنوان

Rule of Law, Socially Constructed Reasons, and Marriage Equality

Number

LA116126

.Language of Text, Soundtrack etc

انگلیسی

Title Proper

Rule of Law, Socially Constructed Reasons, and Marriage Equality

General Material Designation

[Article]

First Statement of Responsibility

Frederick Mark Gedicks

Place of Publication, Distribution, etc.

Leiden

Name of Publisher, Distributor, etc.

Brill | Nijhoff

Text of Note

A reason is "constructed" if it does not appeal to a natural or normative authority that stands apart from human action, but is instead created by contingent social forces. The idea of constructed reason coexists uneasily with the rule of law. A bedrock rule-of-law principle requires that government action be nonarbitrary or reasoned, "reason unaffected by desire," as Aristotle said. Yet, if the reasons judges invoke to justify judicial decisions are part of variable social and historical contexts in which the judges themselves are embedded, how can judicial decisions uphold the rule-of-law requirement of reasoned decision making untainted by the decision maker's desires? This essay gives a philosophical account of the social construction of legal reasons, relying on Kant, Heidegger, and Gadamer as the decisive figures. It applies this account to current U.S. controversies over same-sex marriage, and suggests how constructed reasons might coexist with still-powerful rule-of-law myths. A reason is "constructed" if it does not appeal to a natural or normative authority that stands apart from human action, but is instead created by contingent social forces. The idea of constructed reason coexists uneasily with the rule of law. A bedrock rule-of-law principle requires that government action be nonarbitrary or reasoned, "reason unaffected by desire," as Aristotle said. Yet, if the reasons judges invoke to justify judicial decisions are part of variable social and historical contexts in which the judges themselves are embedded, how can judicial decisions uphold the rule-of-law requirement of reasoned decision making untainted by the decision maker's desires? This essay gives a philosophical account of the social construction of legal reasons, relying on Kant, Heidegger, and Gadamer as the decisive figures. It applies this account to current U.S. controversies over same-sex marriage, and suggests how constructed reasons might coexist with still-powerful rule-of-law myths.

Date of Publication

2018

Physical description

115-146

Title

Journal of Law, Religion and State

Volume Number

6/2-3

International Standard Serial Number

2212-4810

Subject Term

"

Subject Term

Gadamer

Subject Term

Heidegger

Subject Term

hermeneutics

Subject Term

History of Religion

Subject Term

Human Rights and Humanitarian Law

Subject Term

Kant

Subject Term

legal reasoning

Subject Term

natural law

Subject Term

Religious Studies

Frederick Mark Gedicks

Call Number

10.1163/22124810-00602001

Electronic name

p

[Article]

275578

a

Y