Abstract

https://ssrn.com/abstract=2914228
 


 



On Tragic Legal Choices


Iris van Domselaar


University of Amsterdam

February 9, 2017

Amsterdam Law School Research Paper No. 2017-03
Law and Justice Across Borders Research Paper No. 2017-01 (previously Working Paper Series on Postnational Rulemaking)

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.

Number of Pages in PDF File: 37

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

JEL Classification: K40, K10


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Date posted: February 9, 2017 ; Last revised: February 18, 2017

Suggested Citation

van Domselaar, Iris, On Tragic Legal Choices (February 9, 2017). Amsterdam Law School Research Paper No. 2017-03. Available at SSRN: https://ssrn.com/abstract=2914228

Contact Information

Iris Van Domselaar (Contact Author)
University of Amsterdam ( email )
Spui 21
Amsterdam, 1018 WB
Netherlands
HOME PAGE: http://home.medewerker.uva.nl/i.vandomselaar/
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