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Legal Directives and Practical Reasons$
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Noam Gur

Print publication date: 2018

Print ISBN-13: 9780199659876

Published to Oxford Scholarship Online: January 2019

DOI: 10.1093/oso/9780199659876.001.0001

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The Functional Argument

The Functional Argument

Chapter:
(p.97) 6 The Functional Argument
Source:
Legal Directives and Practical Reasons
Author(s):

Noam Gur

Publisher:
Oxford University Press
DOI:10.1093/oso/9780199659876.003.0007

This chapter discusses law’s capacity to fulfil its conduct-guiding function within different frameworks of practical reasoning. A functional argument of Raz is initially presented: according to this argument, authorities—including legal authorities—would not be able to fulfil their intended function if their directives operated as reasons for action that compete with opposing reasons in terms of their weight, rather than as pre-emptive reasons (Section 6.1). Several grounds for this argument are considered and found to be inadequate (Section 6.2). The spotlight is then directed onto another relevant consideration: law’s structural suitability to counteract several situational biases operative in contexts of individual and collective action (Sections 6.3.1–6.3.5). It is argued that law’s pivotal role in addressing practical problems linked with those biases strongly militate against the weighing model (Sections 6.3.6). Finally, the implications of those biases for the pre-emption thesis are discussed (Sections 6.3.7).

Keywords:   normative weighing, conduct-guiding function of law, epistemic reasons, social coordination, double-counting reasons, cognitive biases, self-enhancement bias, self-serving biases, myopic discounting, the availability heuristic

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