Pierre Schlag, University of Colorado Law School, is publishing Reason in Fundamental Concepts for International Law (Jean d'Aspremont & Sahib Singh, eds., Edward Elgar Publishing, 2018). Here is the abstract.
This brief essay, prepared for a compendium of fundamental concepts in international law, explores the character of reason in law. The particular focus here is on the challenges that reason confronts when faced with a law whose authorities, aesthetics, and self-idealization are resistant to reason. By focusing on a close reading of some passages from Ronald Dworkin’s “Law’s Empire,” the essay shows how the “partisans of reason” who seek to represent law as a reasoned endeavor rhetorically prepare their grounds by engaging in a suspect reductionism and purification. That is to say, they recast law into reason’s idea of law (a pale imitation of the former). With this rhetorical work out of the way, the partisans of reason proceed to show that, in law, reason rules. This widespread and largely successful substitution of reason’s image of law for law itself often goes unnoticed. Not only does this substitution do damage to the collective intellect, but to reason itself. And this — at a political-legal moment when a rigorous and widespread understanding of the uses and limits of reason might be of considerable help.Download the essay from SSRN at the link.