The Legacy of John Gardner: Legal Justification and the Metaphor of “The Balance of Reasons”

Abstract

This article presents a critical commentary on one point of John Gardner’s rich legacy. The critique accepts two important commitments assumed in Gardner’s contributions to legal theory. First, it assumes a positivist approach to analysing law and, second, the idea that law can be understood as aiming to constitute reasons for action. On this basis, the criticism is directed in particular against Gardner’s conception of the so-called ‘balance of reason’ that the addressees of law, i.e. judges in particular, must undertake in the case of conflicts between legal norms. Gardner’s conception of this issue is determined by the widely accepted thesis of the unity of practical reason on the premise that there is only one kind of reason that has a ‘genuine’ capacity to justify decisions. The arguments put forward in this critical analysis are based on Bernard Williams’ reflections on practical reasons.