Frederick Mark Gedicks (Brigham Young University - J. Reuben Clark Law School) has posted Rule of Law and Socially Constructed Reasons: Marriage Equality and Religious Accommodation (5 Journal of Law, Religion & State (2017), Forthcoming) on SSRN. Here is the abstract:
Most constitutional scholars are familiar with Justice Bradley’s notoriously sexist justification for excluding women from practicing law in Bradwell v. Illinois (1873) (concurring opinion). No judge could write such an opinion today. Unlike the 19th-century U.S., contemporary Western societies acknowledge the equality of men and women, and thus cannot coherently exclude women from the professions because of purportedly “natural” inabilities. What seemed obviously reasonable in 1873 is patently unreasonable today.
The shift from gender exclusion in the 19th century to gender equality in the 21st illustrates the socially constructed nature of legal reasons. A reason “constructed” if it does not appeal to a necessary and natural normative authorities, but is instead created and shaped by contingent social and historical forces. The idea that the “reasons” of legal reasoning change as society changes is neither new nor especially radical, the legal thinkers often miss its importance and implications. For example, the idea of socially constructed reasons exists uneasily with the Rule of Law. On the one hand, a bedrock Rule-of-Law principle requires that government action be nonarbitrary or reasoned, “reason unaffected by desire,” in Aristotelian formulation. The Rule-of-Law principle of reasoned or nonarbitrary judgment found its way into Federalist 78 and binds government today through the Due Process Clauses of the 5th and 14th Amendments. On the other hand, if the reasons invoked to justify judicial decisions are part of variable historical, social, and linguistic contexts in which the judges themselves are also embedded, how can judicial decisions uphold the Rule-of-Law requirement of reasoned decision making untainted by preference and desires?
This essay gives a philosophical account of the social construction of legal reasons, and how this affects still-powerful myths of the ROL. Part I sets out the classical natural law argument that some natural and essential characteristic of the world connects law and reason. Part II gives a philosophical account of constructed reasons, with emphasis on Kant’s restructuring of perception and formalization of right, and Heidegger’s and Gadamer’s approach to the hermeneutic problem that preoccupied 19th- and 20th-century philosophy of knowledge in the so-called “human sciences” like law, theology, and the humanities. Part III explains that the constructed character of legal reasons is manifestation of the hermeneutic problem and can only be dealt with on that understanding. It shows how understanding reasons as constructed rather than natural reframes (a) the USSCt’s justification of its extension of civil marriage to gays and lesbians, and (b) the question whether religious exemptions that shift the costs of a religious exercise from those who practice it to those who don’t are “reasonable,” including the currently open question whether purely dignitary harms stemming from religious accommodation are sufficient to invalidate such accommodations as “unreasonable.” Part IV discusses what the ROL can mean if the legal reasons that underwrite it are socially constructed.