Riz Mokal (South Square; University College London – Faculty of Laws; University of Aberdeen – School of Law) has posted Reasons, Justice, And Law on SSRN. Here is the abstract:
Law is routinely invoked as providing reasons. Sometimes it is taken as triggering prudential reasons, as where compliance avoids sanction. Sometimes it is said to figure in moral reasoning in ways that are not distinctive to law, including by bearing on reasons to do what would otherwise be morally impermissible. Whether, and if so how, law can give rise to moral reasons distinctively, and with what normative implications, is deeply contested. This paper asks when, and on what basis, legal positions—duties, rights, powers, permissions, prohibitions, immunities, and similar—succeed in structuring such moral reasons. The paper considers and rejects arguments to the effect that law creates distinctive reasons internal to legal practice, and that it provides authority-based ‘reasons about reasons’.
The paper’s central claim is that legal positions figure in moral reasoning in a way distinctive to law by complying, to an adequate degree, with the requirements of justice governing both outcomes and the processes by which they are reached. For these purposes, justice is understood as governing the distribution of allocable benefits and burdens for which persons or institutions bear responsibility. Claims of justice arise in relation to those whose equal standing must be respected by those with responsibility for such distributions. To respect a person’s equal standing is to treat them as equally entitled to justification.
The paper develops equal standing as both a constraint on what may count as a reason of justice at all and as a structuring principle for assessing five categories of justice-relevant considerations familiar in legal reasoning: consent, expectation, desert, need, and prior entitlement. It explains why justice is scalar rather than binary, how outcome- and process-based reasons may conflict, and why adequately just institutional procedures may generate reasons of justice to defer to their outcomes under conditions of reasonable disagreement.
Insolvency law is treated as a demanding test case. Conditions of scarcity, conflict, and compulsory loss-allocation bring questions of justice to the fore, making insolvency a useful site for examining how law specifies, settles, and allocates responsibility for acting on justice-based reasons under conditions of reasonable disagreement.