Law’s Regret: On Moral Remainders and a Virtue-Ethical Approach to Legal Decision-Making

Abstract

In his essay ‘Ethical Consistency’, Bernard Williams famously introduced the concept of a moral remainder, which points to the phenomenon of an in itself defensible decision that may nonetheless result in a moral cost that merits further attention. Williams discussed this concept mainly in the context of the private sphere, that of politics and indicated that it could also be pertinent in the context of lawyering and perhaps other (professional) settings. Inspired by Williams, many scholars have discussed this concept and its related phenomenology in several other professional contexts.
However, the concept of a moral remainder has rarely been discussed in the context of legal decision-making, which is striking because this practice largely consists of judges making decisions that, although they may be legally justified, nonetheless negatively affect fundamental interests of the ‘losing’ party. Hence, this article elaborates on the relevance of Williams’s concept of a moral remainder in the theory and practice of judicial decision-making in a liberal legal order. Moreover, it argues that the concept of a moral remainder is not only most naturally situated within but also a welcome complement to a virtue-ethical approach to legal decision-making. Finally, this article addresses three concerns that need to be further explored for the accommodation of moral remainders in the theory and practice of legal decision-making to be successful.

Keywords: Bernard Williams, moral remainders, legal decision-making, virtue-jurisprudence, (in)commensurability, agent-regret, compassion.