Permissive Justification

Abstract

Often, practical decision presents us with a zero-sum choice, so that whatever is gained by choosing one option is lost by choosing the others. A parent must choose which child gets to ride first on the bicycle; a doctor must determine which among some range of courses of treatment to follow; an architect must pick which style of structure best suits a site; a judge must decide which side wins in a dispute before her. In each case, the decision-maker must select one from a menu of options and reject the others. Where the results are all-or-nothing in this way, an agent does not have the option of endorsing multiple outcomes all at once. Her choice separates the options into two categories, winners and losers.

Sometimes reason is decisive, so that the reason for favouring the winner is also the reason for rejecting the loser. But sometimes reason is indecisive: all the reasons prevail (every option is a winner), or none do (every option is a loser). Rational indecision presents a problem for zero-sum decisions: the range of available reasons for decision is greater than the range of available options or outcomes. Reason alone does not select the winners and losers. In zero-sum decisions, if all the reasons are winning reasons, it is difficult to justify to the loser why they lost; when all the reasons are losing reasons, justifying losing is easy; justifying why one of the losers gets to win is hard. In either case, when called upon to justify her decision, the decision-maker cannot simply point to some decisive reason as requiring the outcome. In such cases, reason is indecisive, and under-determines the outcome of practical conflicts.

I suggest that, on occasion, legal reasons prove equivocal or indecisive. Indecisive reasons are enough for full-blown justification, even in high-stakes enterprises such as legal decision-making. On this permissive model, demands for one right answer set the bar too high. When faced with a range of indecisive reasons for decision, a judge may be permitted to pick one among them as a reason for decision, and be fully justified whichever one she picks.

Permissive justification turns out to be virtue for liberal professions (like the law) that value a diversity of professional perspectives and styles in working through the various options that the world throws at us. Yet the dominant understanding of the practice of adjudication is that judges are not allowed the normative space afforded to other liberal professionals. I provide a variety of examples to suggest that the justification of judicial decisions may be permissive and pluralistic.

Keywords: Joseph Raz, John Gardner, Ronald Dworkin, judges, adjudication, justification, permission, decision, discretion, reason, practical reason, choice, decision-making, liberal, professionalism