On Tragic Legal Choices

Abstract

In this paper the concept of the tragic legal choice is established as an indispensable complement to our theoretical understanding of adjudication. Not only in rare, exotic and consequently numerically negligible cases, judges may be confronted with tragic legal choices. In these cases adjudication will engender a sense of tragic loss, a lack of clarity, incommensurability and messiness, which cannot be avoided, overcome, or dismantled as a pre-reflective or extra-legal illusion. In this sense, this paper is a harbinger of ‘bad news’ for law and adjudication.

The paper is organized as follows. It firstly discusses the concept of the ‘tragic’ in (the history of) practical philosophy. Subsequently, the central features of a tragic legal choice are laid out: it is the result of a genuine conflict between judicial commitments, it leaves a tragic remainder in its wake and it typically evokes a tragic response on the part of the judge. In the elaboration of the first feature, different categories of conflicts between judicial commitments that may give rise to tragic legal choices are distinguished.

After this survey, the purported advantages and drawbacks of anchoring this concept in both the theory and practice of adjudication are analysed. Throughout the paper a variety of legal cases will be discussed, partly in order to foster the reader’s sense of the tragic.

Keywords: legal philosophy, legal ethics, tragedy and law, incommensurability, moral remainder, phenomenology and law, conflicting rights, dirty hands.

JEL Classification: K40, K10