Legal Reasoning, Particularism. In Defence of a Psychologistic Approach
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In this paper I recommend a close examination of the reasons favouring a deep and potentially far-reaching reorientation of legal theory, and of the theory of norms and norm-based reasoning and decision-making generally, namely, the adoption of a psychologistic approach ("psychodeontics"). I argue in favour of psychologism - not in the abstract but with reference to two particular topics: legal reasoning (specifically, the justification of judicial decisions) and the project of a of two-tier (principles vs. rules) theory of law informed by a particularistic conception of practical reasoning. I show that, according to the particularistic outlook, the rule-exception relationship brings out aspects of practical reasoning that quite naturally lend themselves to an understanding of practical reasoning in psychological terms. In contemporary circumstances, I argue in the conclusion, psychologism is the major route to the naturalization of jurisprudence.