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Research Details
Disorder and Discontinuity in Law and Morality, Theoretical Inquires in Law
Abstract
For every legal concept X, there are clear instances exemplifying an X and clear instances exemplifying a non-X. The cases that come before courts are those that seem to lie in between, being neither clearly an X nor clearly a non-X. It is tempting to think that, being in-between, they should receive an in-between treatment, that is, to the extent that they are an X they should be treated as an X. If they are sixty percent toward being an X, they should get sixty percent of the treatment due an X. But this presupposes that in-between cases can be rank-ordered at least roughly according to the degree of their X-ness. This Article explains why that generally cannot be done and why courts therefore go for an either/or approach: something gets treated either as an X or as a non-X. The explanation is rooted in the kind of phenomena explored in the theory of social choice and multi-criterial decision-making.
Type
Article
Author(s)
Alvaro Sandroni, Leo Katz
Date Published
2021
Citations
Sandroni, Alvaro, and Leo Katz. 2021. Disorder and Discontinuity in Law and Morality. Theoretical Inquires in Law. 22(1): 31-44.