Rationality and counterfactual legal analysis Articles uri icon

publication date

  • December 2016

start page

  • 105

end page

  • 129


  • 1


  • 2

International Standard Serial Number (ISSN)

  • 2421-2156


  • The aim of this article is to argue that counterfactual legal analysis should be
    used as a primary method in judicial interpretation of legislation. The article
    examines this issue assuming a rationality setting in which law is understood as a
    credibility device. Judges should show deference to the legislator when counterfactuals
    have been foreseen by the latter; in contrast, they might substitute their own
    judgment for the legislator's choices when the latter has not devised a counterfactual
    situation, and the norm is not an equilibrium from a law as credibility' perspective.


  • Law