Publication details
Can Emotional Dogs and Their Rational Tails in the Courtroom Get into the Space of Reasons?
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| Year of publication | 2022 |
| Type | Appeared in Conference without Proceedings |
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| Description | If we talk about the interpretation and application of law, then moral reasoning is often mentioned. Ronald Dworkin considers moral reasoning to be essential in resolving difficult constitutional issues. Dworkin's approach and his theory is defined against positivism, it should be noted that this thesis of Dworkin was not disputed by legal theorists and philosophers from the positivist camp (Herbert Hart or Joseph Raz) where they differ from Dworkin was that he did not necessarily consider them as part of the law. Joseph Raz “only” argues that in such cases judges exercise their discretion. Thus, even positivists do not deny that moral reasoning plays a role in the interpretation and application of law, including in the case of judicial decision-making. From this we can conclude that the question of moral reasoning is relevant, not only from the perspective of iusnaturalists or anti-positivists, but also from the perspective of positivists. Therefore, it may be surprising that we do not deal much with these within legal theory. This paper aims to fill this "gap" in our theoretical and legal knowledge and to focus on this. It aims to explain how judges decide which interpretation to use where the hypothesis is that moral intuitions might play a crucial role. For this analysis Jonathan Haidt´s social intuitionists model will be used. Haidt when discussing our moral decisions and reasoning speaks about our emotional dog which makes the decisions and his rational tail which then just justify it post hoc (and sometimes very poorly). In this paper I want to argue that even if this is true even in the case of judges, we do not have to be afraid that the decisions will automatically be unjustified. I want to argue that if certain conditions are met (and we will mention them) then, despite the fact that it is our emotional dog which makes the decision, we can reach reasonable solution. Thanks to the fact that judges have to formulate their justification in language and the fact that reasoning is primarily the social enterprise, those dogs can get into the space of reasons. |
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