Being Apart from Reasons: The Role of Reasons in Public and Private Moral Decision-Making

200 Pages·2006·1.42 MB·English

by  Cláudio Jr. Michelon

BEING APARTFROM REASONS
Law and Philosophy Library
VOLUME76
Managing Editors
FRANCISCO J. LAPORTA, Department of Law,
Autonomous University of Madrid, Spain
ALEKSANDER PECZENIK, Department of Law, University of Lund, Sweden
FREDERICK SCHAUER,John F. Kennedy School of Government,
Harvard University, Cambridge, Mass., U.S.A.
Former Managing Editors
AULIS AARNIO, MICHAELD. BAYLES†, CONRAD D. JOHNSON†,
ALAN MABE
Editorial Advisory Board
AULIS AARNIO, Research Institute for Social Sciences,
University of Tampere, Finland
´
ZENON BANKOWSKI,Centre for Law and Society, University of Edinburgh
PAOLO COMANDUCCI, University of Genua, Italy
ERNESTO GARZÓN VALDÉS, Institut für Politikwissenschaft,
Johannes Gutenberg Universität Mainz
JOHN KLEINIG, Department of Law, Police Science and Criminal
Justice Administration, John Jay College of Criminal Justice,
City University of New York
NEILMacCORMICK, European Parliament, Brussels, Belgium
WOJCIECH SADURSKI, European University Institute,
Department of Law, Florence, Italy
ROBERTS. SUMMERS, School of Law, Cornell University
CARLWELLMAN, Department of Philosophy, Washington University
BEING APART
FROM REASONS
The Role of Reasons in Public
and Private Moral
Decision-Making
by
CLÁUDIO MICHELON JR.
Reader in Law at the Federal University of Rio Grande do Sul, Brazil
AC.I.P. Catalogue record for this book is available from the Library of Congress.
ISBN-10 1-4020-4282-5 (HB)
ISBN-13 978-1-4020-4282-9 (HB)
ISBN-10 1-4020-4283-3 (e-book)
ISBN-13 978-1-4020-4283-6 (e-book)
Published by Springer,
P.O. Box 17, 3300 AADordrecht, The Netherlands.
www.springer.com
Printed on acid-free paper
All Rights Reserved
© 2006 Springer
No part of this work may be reproduced, stored in a retrieval system, or transmitted
in any form or by any means, electronic, mechanical, photocopying, microfilming, recording
or otherwise, without written permission from the Publisher, with the exception
of any material supplied specifically for the purpose of being entered
and executed on a computer system, for exclusive use by the purchaser of the work.
Printed in the Netherlands.
to Laila
CONTENTS
ACKNOWLEDGEMENTS • ix
INTRODUCTION (cid:127) 
CHAPTER ONE
MORAL ACTION,
REASON ANDINCLINATION (cid:127) 
(cid:127) 
ANTECEDENTSOFACTION
(cid:127) 
THEORIESOF MERCY
(cid:127) 
CAUSALITY AND MORALACTION
INTENSIONALITY, UNIVERSALS AND PARTICULARS (cid:127) 
THE VALUEOF A MORALACTION ANDTHE VALUEOF MORAL LIFE (cid:127) 
MORAL CERTAINTY ANDTHEWEIGHTOFONE’SOWNMORALSUCCESS (cid:127) 
(cid:127) 
ASUMMARYOFTHEARGUMENT
CHAPTER TWO
REASONING INPUBLIC
ANDPRIVATECONTEXTS (cid:127) 
PUBLICAGENTS’ DIRTY HANDS (cid:127) 
(cid:127) 
CONCLUSION
EXCURSUS ON THE MERCIFUL ACTIONS PERFORMED
IN THE EXERCISE OF PUBLIC ROLES (cid:127) 
CHAPTER THREE
NEUTRALIST PUBLIC LIBERALISM
ANDTHEINSULATION
(cid:127) 
OFTHE RIGHTFROMTHE GOOD
IMPARTIALITY AND SYSTEMATICPRIORITY (cid:127) 
THETWO STRATEGIES TO JUST IFY THE POSSIBLE PRIORITY
(cid:127) 
OFTHERIGHTOVER THEGOOD
(cid:127) 
THEINTERNAL CONNECTIONARGUMENT
(cid:127) 
THE OBJECTIVITYARGUMENT
(cid:127) 
PUBLIC LIBERAL NEUTRALISM ANDTHE CRITICAL PROJECT
(cid:127) 
FINAL WORDS
vii
viii Contents
CHAPTER FOUR
LEGAL AND NONLEGAL REASONS
INTHECOMMONGROUNDOFDELIBERATION (cid:127) 
(cid:127) 
AUTHORITY ANDAUTONOMOUS DECISIONMAKING
(cid:127) 
REASONSFORDECISION AND REASONSFORACTION
(cid:127) 
PREEMPTION IN LEGAL REASONING
(cid:127) 
FORMAL REASONS
(cid:127) 
CONCLUSION
CHAPTER FIVE
THEPROCEDURALVALUEOFLAW
ANDTHE INSULATIONBETWEEN
LEGAL ANDMORALREASONSFOR ACTION (cid:127) 
(cid:127) 
THE PROCEDURAL VALUEOF LEGAL REASONING
WALDRON’SARGUMENTFORTHEIMPERFECT PROCEDURAL VALUE
(cid:127) 
OF LEGISLATION
(cid:127) 
DISCOURSE THEORY ANDTHE PROCEDURAL VALUEOF LAW
About whether o r notAlexy’sconceptionoflegalreasoning as ap ur e
procedure implies th e insulation o flegal reasons from moral reasons (cid:127) 
Habermasandtheco-originalityoflawandmorals (cid:127) 
CONCLUSION (cid:127) 
(cid:127) 
THE THESES
(cid:127) 
THE ARGUMENTTOPROVETHEFIRSTTHESIS
(cid:127) 
THE ARGUMENTSFORTHESECONDTHESIS
REFERENCES (cid:127) 
INDEX (cid:127) 
ACKNOWLEDGEMENTS
Writing acknowledgements typically demands one to be just, instead of
merciful. What should guide the author’s hand is not benevolence, but
the need to offer a modest and standardised thanks to those from whom
one was offered support and ideas in the process of writing a book. In
the case of this book, this is more easily said than done. First, because
acknowledgements are too modest a repayment for the support I have had
throughout the last years in writing this book. Secondly, because I owe to
too many people.
This book is a slightly modified version of my PhD thesis, presented
in Edinburgh at the beginning of . It is not surprising then that I
wish to start by expressing my deep gratitude to Prof. Zenon Bankowski
and Dr Emilios Christodoulidis. They helped to bring my understanding
of the relevance of academic work to a different level by presenting me
with problems I had never thought about before coming to Edinburgh.
It suffices to say that my original PhD project was something about the
descriptive nature of Hart‘s rule of recognition. The brainstorm that
followed my acquaintance with the ideas of each of them (different as
they are) resulted in a completely different project of which my PhD
thesis was a result. They were both sharp in their criticism and generous
in their suggestions and, indeed, this book can be understood as a result
of my attempts to answer their objections and explore their suggestions.
Professor Bankowski brought me to engage in a project of reflecting
on the ethics of decision-making processes. His work on legal decision-
making and our discussions on the same subject, made me worry about
the problem of the role of reasons in practical decision-making. Dr
Christodoulidis helped me to understand certain political implications
of my ideas which were not entirely clear to me. Particularly, the last
chapters of this thesis can be understood as being engaged in the same
project of reflexive politics in which Dr Christodoulidis has long been
engaged. I wish also to thank Prof. Neil MacCormick for his criticism
and suggestions. In  Prof. MacCormick helped me both as a teacher
and by assessing the first sketch of what would become this book. In ,
Prof. MacCormick examined my thesis and again made suggestions that
helped me to revise the thesis in the process of changing it into a book.
ix
x Aknowledgements
On that latter account, and for the same reasons, I am also indebted
to Prof. Stephen Guest. Finally, I wish to thank Springer Verlag’s three
anonymous reviewers who made very helpful suggestions to the book.
During my period at Edinburgh, I have had the luck of meeting
a particularly bright group of academics. They all influenced my thesis,
particularly through the weekly discussions we had in our reading group
to discuss books, articles and our own papers. At different times, many
Ph.D. students, post-doctoral researchers and members of Edinburgh
University’s academic staff took part in the group. Among the many
who took part in the group are Fernando Atria, Richard Jones,
Shinshiro Hama, Tania Kyriakou, Emanuel Melissaris, Leonor
Moral, George Pavlakos, Sarah Shaw and Kevin Walton. They were all
keen critics of the thesis material and will always be good friends.
Among those I especially wish to thank Dr Fernando Atria and
Kevin Walton. Dr Atria proved to be my most relentless debater, not only
in my years in Edinburgh but also today, and not only about the specific
subjects I deal with in the thesis, but also about virtually everything from
evolutionism to the legitimating force behind the warnings on cigarette
packs. Sharing an office with Kevin Walton in Edinburgh University’s
Minto House was one of my most rewarding philosophical experiences.
His openness to discuss every intricate problem in my arguments, which
I used to raise with no warning in Edinburgh’s calm working afternoons,
attested my luck in sharing an office with someone who is both a keen
philosopher and a very patient man. Another evidence of Kevin Walton’s
patience was the fact that he proof-read most of this book, and I thank
him also for having performed that boring and demanding task. Not
surprisingly, I came to count both of them among my greatest friends.
I also wish express my gratitude toPaulo Faria, Judith Martins-Costa ,
Luis F ernando Barzotto, Jorge Cesa Ferreira da Silva, Humberto, Ávila,
Paulo Grossiand Laila Rashid.
For financial assistance, I am grateful to CAPES, the Brazilian
governmental agency which awarded me an scholarship and made it
possible for me to go to Edinburgh, and to the ORS Award Scheme.
For the past few years I have accumulated also a significant debt of
friendship some of which was acknowledged above. I wish also to thank
the many friends who were not directly involved in the arguments I put
forward in the thesis, but without whom I would not have the sort of life
that allowed me to write this book. Among them, I especially thank Elly,
Etty, Anna H., Anna W., Guido and Peggy.
Porto Alegre, October th .