Judicial Ethos and the Autonomy of Law

Abstract

Eugene Garver's For the Sake of Argument is a tremendously interesting book on one of the most important topics in jurisprudence today. This topic used to be called the "autonomy of law." Today, the issue is better put as understanding the rational character of law. If we can no longer speak of law as a science, what is it that distinguishes the reasoning of law from other forms of political reasoning? Especially interesting is the way in which Garver analyzes a situation familiar to those of us who practice law: the experience, on the presentation of equally plausible arguments from opposing sides, of equipoise that gives way to decision, followed by a sense of necessity. The problem is to understand this movement from legitimacy to justice in a way that does not undermine the autonomy of law by appealing to interests, subjectivity, or politics. Garver argues that, during this mysterious middle moment of decision, logic may give out but reasonable argument is not exhausted.