The real Ratio Legis and where to find it: A few pragmatic considerations

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Abstract

The term ratio legis is an important term of legal practice. Thus, reflection over the general conceptual content of ratio legis may be a window through which practitioners could see the relevance of philosophizing about terms and arguments applied generally in legal practice. However, the primary question with regard to ratio legis is not conceptual but existential: is there any real ratio legis that can be discovered and described? The positive answer opens the door for further investigation over the term's real conceptual content. I will argue, however, that the answer to this question cannot be positive and every qualification of something as the "law's reason" is a creative activity. If it is so, then every instance of such a labeling (in which one says, "The ratio legis of this legislative act is X") is in need of further justification. The example of ratio legis shows that legal theorizing is profoundly a normative study of how we should, rather than of how we do, use legal terms (concepts).

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Dyrda, A. (2018). The real Ratio Legis and where to find it: A few pragmatic considerations. In Ratio Legis: Philosophical and Theoretical Perspectives (pp. 3–17). Springer International Publishing. https://doi.org/10.1007/978-3-319-74271-7_1

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