Rawls says that public reason is the reason of the citizens of a democratic state and takes the Supreme Court in the USA as the exemplar of public reason. It differs from non public reason, which is used e.g., in universities and academic institutions. Rawls contrasts with Kant, which opposes the public reason of the scholar—or the philosopher—, who speaks before the world, to the private reason of state or church officials. The later, once they accept an authority, cannot think (...) by themselves (selbst denken). A closer examination shows that Rawls is not so far from Kant as it seems, because he takes the constitutional judges not as they are, but as they should be. However Rawls still apparently refuses Kant’s unity of reason. Further investigation of the relations between ethical reason, democratic reason and legal reason is needed. Democratic reason is tantamount both to public reason and to legal reason in a modern constitutional state. It is a requirement of ethics but still not identical with ethical reason, since it is possible to accept democratic reason and to argue against it from an ethical point of view. There is just one good way of reasoning, in spite of the constraints that the sources of law and the rules of procedure impose on legal reasoning, compared with ethics. Such constraints are based on the democratic principle, which is again based on ethical reason, which at last both grounds and limits the constraints that law imposes on reason. (shrink)

Does Duncan Kennedy successfully cannibalize jurisprudence? He attempts to do it by demonstrating the inexistence of rightness in legal argumentation. If there is no right legal argument, then there is no right answer in adjudication, adjudication is not a rational enterprise and legal doctrine cannot be said to be a science. It can be shown that skepticism is self-defeating. Duncan Kennedy can avoid self defeat only because he actually believes in a lot of legal arguments. His thesis that judges decide (...) questions of policy without any methodology that distinguishes them from legislators does not hold. Judicial reasoning is subject to constraints that do not affect legislators. It must be based on the sources of law and is limited by rules of procedure. Even when the judges have ‘interstitial’ legislative powers they are, unlike the legislator, bound to fit the system and their decisions are considered in procedure from the perspective of the right answer doctrine. The only work that can convincingly refute the skeptic argument against legal science is the reconstruction of jurisprudence as a scientific enterprise. Such work is beyond the scope of any single paper. The article aims to give some inspirations for such a task. (shrink)

Segundo Levinas em Husserl encontra-se o paradigma do pensar da tradição filosófica que concebe a consciência como intentional, activa e teórica, determinando o objecto perante o qual se encontra, dando-lhe sentido. Para Levinas, ao contrário, o eu perante o Outro revela-se como sendo essencialmente passividade, subordinado a ele a quem tem de responder e recebendo dele sentido. Apesar desta oposição Levinas considera-se seguidor do espfrito e da letra da fenomenologia. /// Selon Levinas, on trouve chez Husserl le paradigme du penser (...) de la tradition philosophique qui conçoit la conscience comme intentionelle, active et théorique, déterminant l'objet face auquel elle se trouve et lui donnant sens. Pour Levinas, au contraire, le moi devant l'Autre se révèle comme etant essentiellement passivité; il est subordonné à l'Autre, dont il doit répondre et il reçoit sens de lui. Malgré cette opposition, Levinas se considere comme adhérant à l'esprit et à lettre de la phénoménologie. /// According to Levinas, Husserls thought exemplifies the paradigm on the philosophical tradition's tendency to conceive the conscience as intentional, active, and theoretical; the conscience determines the object that it encounters before it by giving the object a sense. For Levinas, on the contrary, the "I" that encounters the "Other" is essentialy passive, for the "I" is in a relation of subordination to the "Other" and receives his sense from this very relation. But, in spite this opposition Husserl's position, Levinas considers himself a follower of the spirit and letter of phenomenology. (shrink)