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  • Print publication year: 2009
  • Online publication date: December 2010

3 - The Challenge of Public Justification

Summary

In this chapter, I go into more detail what public justification is, why it is important, and how reasonable people could offer reasons that they sincerely believe other reasonable people would accept. I then explain what makes hard constitutional cases hard by drawing on accounts of the nature of reasonable disagreement found in contemporary political theory literature. In doing so, I hope to show that this kind of disagreement, as intractable as it may be at times, need not lead to skepticism about the possibility of the rational resolution of constitutional controversies. Although most of us these days doubt the ability of formalist or deductive methods to provide correct answers, at least in hard cases, it does not follow that any constitutional argument is as good as any other constitutional argument. One can appreciate why reasonable judges might reach different results in such cases and not conclude that the process of giving reasons is futile. The kinds of reasons that a judicial opinion incorporates will determine whether that opinion is legitimate. There is a world of difference between an opinion that meets or comes close to meeting the standard of public justification that I defend in this book and an opinion that clearly falls short of that. I then conclude with some thoughts on the weaknesses of skeptical challenges to the objectivity of legal reasoning.

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