Indeterminacy, Value Pluralism, and Tragic Cases

71 Pages Posted: 26 Aug 2014 Last revised: 10 Nov 2014

See all articles by David Wolitz

David Wolitz

University of the District of Columbia David A. Clarke School of Law

Date Written: September 1, 2014

Abstract

This Article addresses two fundamental questions of legal theory: Does the law provide a uniquely correct answer to each legal question? And if the answer is no, then how should a legal decisionmaker choose among multiple but conflicting legitimate legal answers?

I argue that the thesis of value pluralism articulated by Isaiah Berlin (1909-1997) provides powerful answers to both questions. Value pluralism holds that there are multiple human goods and that these goods are objective, distinct, and incommensurable. It thus explains why there are some cases for which the law cannot provide a uniquely correct answer, but only a range of justifiable choices. Such cases are both legally indeterminate and shot through with incommensurable and conflicting value choices. These are tragic cases because the judge cannot help but choose one value over another and thus bring about irredeemable loss whichever option he or she chooses.

What, then, is a legal decisionmaker to do when facing such a tragic case? In the second half of the article, I draw on Berlin’s endorsement of practical wisdom (or phronesis) as a constructive path toward thinking through legal decisionmaking in tragic cases. A judge facing a tragic case requires not only technical skill and theoretical wisdom, but also a capacious sensitivity to all of the context-specific facts and values at play in the case. How to cultivate such sensitivity and a corresponding sense of humility in the face of tragic cases becomes the key question of normative jurisprudence.

Keywords: indeterminacy, value pluralism, Isaiah Berlin, practical wisdom, American Legal Realism, formalism, Critical Legal Studies

Suggested Citation

Wolitz, David, Indeterminacy, Value Pluralism, and Tragic Cases (September 1, 2014). Buffalo Law Review, Vol. 62, No. 3, p. 529, 2014, University of Tennessee Legal Studies Research Paper No. 251, Available at SSRN: https://ssrn.com/abstract=2486579

David Wolitz (Contact Author)

University of the District of Columbia David A. Clarke School of Law ( email )

4200 Connecticut Ave. NW
Washington, DC 20003
United States

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