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2 - Must Laws Be Motivated by Public Reason?

from Part I - Public Reason in Constitutional Courts

Published online by Cambridge University Press:  22 May 2020

Silje A. Langvatn
Affiliation:
University of Bergen and University of Oslo
Mattias Kumm
Affiliation:
New York University and WZB Berlin
Wojciech Sadurski
Affiliation:
University of Sydney and University of Warsaw
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Summary

When courts exercise judicial review, should they invalidate laws that are not motivated by public reason? For proponents of public reason, a standard response might be that laws not motivated by public reason are impermissible under the liberal principle of legitimacy. But this response must confront the permissibility objection, which holds that a law’s motivation is irrelevant to its moral permissibility. Against this objection, this chapter defends a motivational requirement for purposes of judicial review. In some cases, an agent’s motivation can be relevant to the permissibility of the agent’s actions. This chapter also argues that laws with mixed motives, both nonpublic and public, may be permissible, but courts have reason to give such laws careful scrutiny in determining whether they are publicly justified.

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Publisher: Cambridge University Press
Print publication year: 2020

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