Abstract

The concern of this essay is to reveal the way in which an architecture of Humean and Cartesian thought, taken for granted by both analytical and critical approaches to legal theory, has stood in the way of demonstrating that facts can be justifications of judicial decisions without recourse to an additional layer of moral or political justification. The inability to demonstrate the normativity of legal facts or state affairs has been the single most serious defect in traditions of pragmatic thought about law (e.g. in legal realism and its contemporary descendants such as critical legal studies, feminist and critical race theory, socio-legal studies etc.). The analysis in this essay provides an argument for abandoning many taken for granted oppositions which inhibit pragmatic and realist approaches to law. These include the stark oppositions between: hermeneutic and causal explanation in law; reasons for decisions and reasons why decisions were reached; normative factors and pure fact etc. The author's chief concern is to demonstrate the possibility of uniting the logic of judicial reasoning with the logic of factual context, and to demonstrate that justification in law is not to be identified with the justification of ethical propositions