f Rule of Law, Socially Constructed Reasons, and Marriage Equality

A reason is “constructed” if it does not appeal to a natural or normative authority that stands apart from human action, but is instead created by contingent social forces. The idea of constructed reason coexists uneasily with the rule of law. A bedrock rule-of-law principle requires that government action be nonarbitrary or reasoned, “reason unaffected by desire,” as Aristotle said. Yet, if the reasons judges invoke to justify judicial decisions are part of variable social and historical contexts in which the judges themselves are embedded, how can judicial decisions uphold the rule-of-law requirement of reasoned decision making untainted by the decision maker’s desires?

This essay gives a philosophical account of the social construction of legal reasons, relying on Kant, Heidegger, and Gadamer as the decisive figures. It applies this account to current U.S. controversies over same-sex marriage, and suggests how constructed reasons might coexist with still-powerful rule-of-law myths.