THE PROCEDURAL VALUE OF LAW AND THE INSULATION BETWEEN LEGAL AND MORAL REASONS FOR ACTION

Abstract

There is no greater challenge to contemporary political and legal philosophy than dealing with the fact of pluralism. Indeed, the challenge is so formidable that it has led legal and political philosophers to seek original ways of justifying legal reasons’ worth. In contemporary jurisprudence, some of the most prominent attempts to justify the authority of legal reasons are theories that ground their authority in the procedure through which legal reasons are created. Some, like Jeremy Waldron, have argued that it is possible to ground the derivation of legislation’s authority from a particular kind of procedure without having to assume the correctness of any particular theory of justice¹. If that is possible, there might be a way to ground law’s (or, in Waldron’s case, legislation’s) authority without having to agree on virtually any substantive matters. The same worry we find in Waldron, we find in Habermas’ argument, as presented in Between Facts and Norms. There he claims that, in a’postmetaphysical age’s, the practical agent is overburdened in his practical reasoning. That burden can be lifted (at least partially) by public institutions operating under the discourse principle, i.e. following a particular procedure of decision-making.