The comparativist structure of legal justification

This article argues that the basic structure of legal justification is ultimately comparativist. This means that comparative facts are necessary to determine whether a legal choice is justified. At first glance, this claim may appear to run counter to a commonly held view about legal justification, for the most basic instances of law application seem to operate in a noncomparative way. Legal choices are normally justified by norms, and norms typically do not require comparison among one's alternatives. In this work, I do not deny that legal justifications are often noncomparative. Building on Ruth Chang's philosophy, however, I argue that the grounds in virtue of which norm-based legal justifications have their normative force are comparative facts—namely, facts according to which one's choice is at least as good as the available alternatives with respect to what matters in legal choice situations (presumably, responding to the reasons given by the law). If the grounds of legal justification are comparative facts, then legal justification is no different from ordinary practical justification.