Is There an Imitative Ratio Legis, and if so, How Many Are There? Psychological Perspective

Abstract

This paper seeks to demonstrate that certain ratio legis in democratic countries where the rule of law is well established is inadmissible in view of its imitative nature. Imitative ratio legis is the purpose of the legislator that aims at an ostensible solution of a social problem. Ostensibility means absence of will on the part of the legislator to have their activity produce effects. The only thing in evidence is an intention to engender a conviction among the addressees of the norms that such an effect does arise.

If we agree that ostensibility is inadmissible, then the question is in what way we can reject imitative ratio legis. We discuss three types of reasons in support of inadmissibility of imitative ratio legis. These are as follows: first, given non-compliance of legislation with the moral standards of the political community (Dworkin); second, in view of the imitative goal of the legislator or absence of a link between a prescribed/prohibited behaviour and the ostensible nature of the legislator’s goal (Fuller); third, lack of conventional-moral relationship between the substance of a prescriptive provision and the goal of the legislator (MacCormick).

All of these types of reasons rely on three assumptions: moral community of judges exist; judges possess special moral competences in assessing which ratio legis is admissible and which is not; their moral reasoning can be characterised as rational. We argue that in the light of the achievements of contemporary moral psychology, above mentioned assumptions are at least doubtful. We are of the opinion that when formulating moral judgments, judges are not equipped with any special moral competence for settling moral dilemmas. We are of the view that since people are usually unaware of the factors affecting their moral judgment, we may assume that judges are similarly unaware of what drives their moral judgments about inadmissibility of ratio legis, and thus the assumption that their decisions are rational is mistaken. If we assume that contemporary findings of moral psychology as to the role of intuitions in the moral judgments are correct, one arrives at an obvious and ‘classic’ question about which manner of argumentation should be adopted in order to convince the doubtful. Some hope can be found in reasoning based on the idea of public reason.