Normative methods for lawyers

UCLA Law Review

Volumn 56, Issue 4, 2009, Pages 899-982

  Singer, Joseph William ^a  

^a UNIVERSITY OF MIAMI   (United States)

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EID: 60849100292     PISSN: 00415650     EISSN: None     Source Type: Journal    
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References (307)

1. MARK HADDON, THE CURIOUS INCIDENT OF THE DOG IN THE NIGHT-TIME 12 (Vintage Books 2003).
2. ERIC MACGILVRAY, RECONSTRUCTING PUBLIC REASON 155 (2004).
3. CHARLES TAYLOR, 2 PHILOSOPHY AND THE HUMAN SCIENCES: PHILOSOPHICAL PAPERS 3 (1985).
4. Ronald Dworkin, Do VaLues Conflict? A Hedgehog's Appmach, 43 ARIL L REV. 251, 259 (2001).
5. See ROBERT FOGELIN, WALKING THE TIGHTROPE OF REASON: THE PRECARIOUS LIFE OF A RATIONAL ANIMAL 1-3 (2003) (arguing that we often appear to be forced to choose between absolutism and nihilism as in the idea that "[dither absolute moral standards exist or there is no such thing as morality").
6. See id. at 11 ("[T]hose who defend so-called absolutes and those who adopt various forms of absolute relativism share a commitment to a rationalist ideal. Those who think that the rationalist ideal can be satisfied swing one way; those who think it cannot, swing the opposite way. Under the sway of the rationalist ideal, no middle ground seems possible, and none is tolerated.").
7. See ELIZABETH ANDERSON, VALUE IN ETHICS AND ECONOMICS 92(1993) ("Mere likings or tastes are distinguished from other attitudes in that they are largely exempt from processes of justification.").
8. See FOGELIN, supra note 5, at 5 ("Debates concerning radical choices are carried on in a way that insulates them from the ordinary, workaday world.").
9. See HENRY S. RICHARDSON, PRACTICAL REASONING ABOUT FINAL ENDS 9 (1997) ("Trying to explain why one pursues what one does take to be worth pursuing for its own sake ties the tongues of the most articulate.").
10. See id. at 31 ("In being at least potentially expressible in words, a course of deliberation that is rational is one that can be assessed and explained, justified and criticized-publicly, it goes without saying.").
11. See CHARLES TAYLOR, SOURCES OF THE SELF: THE MAKING OF THE MODERN IDENTITY 4 (1989) (noting that moral intuitions "involve discriminations of right or wrong, better or worse, higher or lower, which are not rendered valid by our own desires, inclinations, or choices, but rather stand independent of these and offer standards by which they can be judged").
12. I do not use the word "nature" to suggest that there is a timeless natural law structure to such arguments. As a pragmatist, I see such arguments as grounded in human culture. The nature of normative argument changes (legitimately) over time and is relative, to some extent, to particular societies. This does not mean that we cannot make judgments about the values of other cultures, because I believe we can, at least about fundamental human rights. On students' need to learn how to talk about justice, see Peter L. Davis, Why Not a Justice School? On the Role of Justice in Legal Education and the Construction of a Pedagogy of Justice, 30 HAMLINE L. REV. 513-14 (2007).
13. See ANDERSON, supra note 7, at 218 ("Comtnonsense ethical thinking is deeply pluralistic, contentious, embedded in social practices conceived in 'thick' terms, and expressed through non-consequentialist norms. It lacks the unity, self-evidence, universality, and tidiness many philosophers demand of theoretically respectable claims. But the very features of commonsense ethical thinking thought to constitute philosophical vices are indispensable for self-understanding. We need to think of values as plural to make sense of the variety of ways we have of valuing things. We need to contest their meanings to explore and cultivate our evaluative sensibilities. We need to think of valuations as embedded in social practices to make sense of their meaningfulness to others and their susceptibility to criticism and justification in dialogue with others.").
14. For several very different accounts of the nature of practical reason, see ROBERT AUDI, PRACTICAL REASONING AND ETHICAL DECISION (2006) and TAYLOR, supra note 3, at 91-115;
15. Edward C. Lyons, Reason's Freedom and the Dialectic of Ordered Liberty, 55 CLEV. ST. L. REV. 157 (2007).
16. JOHN RAWLS, JUSTICE AS FAIRNESS: A RESTATEMENT § 2, at 5 (Erin Kelly ed., 2001).
17. See ISAIAH BERLIN, FOUR ESSAYS ON LIBERTY 1(1969) ("The simple point which I am concerned to make is that where ultimate values are irreconcilable, clear-cut solutions cannot, in principle, be found. To decide rationally in such situations is to decide in the light of general ideals, the over-all pattern of life pursued by a man or a group or a society."); id. at ii ("The need to choose, to sacrifice some ultimate values to others, turns our to be a permanent characteristic of the human predicament.");
18. see also FOGELIN, supra note 5, passim.
19. See Pierre Schiag, Normative and Nowhere to Go, 43 STAN. L. REV. 167 (1990).
20. JONATHAN LARSON, Over the Moon, on RENT (Dreamworks SKG Records 1996).
21. On the importance of emotion in persuading others, see DREW WESTHN, THE POLITICAL BRAIN passim (2007).
22. See RICHARD RORTY, CONTINGENCY, IRONY, AND SOLIDARITY 197 (1989) ("[Moral] dilemmas [involving conflicting moral obligations] we shall always have with us, but they are never going to be resolved by appeal to some further, higher set of obligations which a philosophical tribunal might discover and apply.");
23. see also RICHARD RORTY, Pragmatism, Rekuivism, and Irrationalism, in CONSEQUENCES OF PRAGMATISM 160-75 (1982).
24. PLATO, THEAETETUS 16 (John McDowell trans., Oxford Univ. Press 1973). Robert Fogelin argues that Protagoras's maxim suggests that he adopted a "radical perspectivism." FOGELIN, supra note 5, at 73. However, it is possible to interpret the Protagoras view as based on sensitivity to the importance of human judgment in moral matters (as opposed to the more formal view espoused by Plato), much as Fogelin argues in his own work.
25. See FRIEDRICH NIETZSCHE, BEYOND GOOD AND EVIL: PRELUDE TO A PHILOSOPHY OF THE FUTURE (Walter Kaufmann trans., Random House 1966) (1886). For a postmodern variant of this, see ZYGMUNT BAUMAN, POSTMODERN ETHICS (1993).
26. See WILL KYMLICKA, CONTEMPORARY POLITICAL PHILOSOPHY 4 (2d ed. 2002) (noting the focus of almost all modem political philosophies in the fundamental assumption that "government treat its citizens with equal consideration; each citizen is entitled to equal concern and respect").
27. See FOGELIN, supra note 5, passim; see also MARK TIMMONS, MORAL THEORY 267-70 (2002) (arguing for limited moral pluralism); STEPHEN TOULMIN, RETURN TO REASON passim (2001) (arguing that a broader conception of reason is both possible and desirable).
28. See RICHARDSON, supra note 9, at 32 ("[N]ot all rational deliberation from a given starting point need converge on a unique answer about what is to be done as the alternative required by reason."). For a brilliant account of moral reasoning in the face of insolvable dilemmas, see MARTHA C. NUSSEAUM, THE FRAGILITY OF GOODNESS: LUCK AND ETHICS IN GREEK TRAGEDY AND PHILOSOPHY (1986).
29. I add the caveat in parentheses because the word "sophistry" has come to mean the concept contained in those parentheses. It is not clear, however, that this is what the actual Sophists intended. Some recent scholars have argued that this view of the Sophists comes from Plato's picture of them-or perhaps even Aristophanes' caricature of them, and that the actual Sophists had a sophisticated (not sophistic) view about the nature of truth and rationality that is superior to the Platonic theory of Forms. See FRANCIS J. MOOTZ III, RHETORICAL KNOWLEDGE IN LEGAL PRACTICE AND CRITICAL LEGAL THEORY 36-41 (2006). My approach in this Article is compatible with this new, approving view of Sophistry which views rhetoric and practical reason as means to justify law and morality in defensible ways.
30. See FOGELIN, supra note 5, at 9 (arguing "that inconsistency does not always render a system useless, that consistency is not always the most important goal of inquiry, and that it might be wholly unreasonable to suppose that human beings will ever be able to attain a view of the world that is both suitably rich and completely consistent"); id. at 42 ("[I]n practice, it is often quite reasonable to employ systems of rules with no guarantee that they are consistent. ⋯ Sometimes the best available strategy is to learn to live with inconsistency in, as we might say, a discriminating and civilized manner."); William James, The Moral Philosopher and the Moral Life, I INT'LJ. ETHICS 330 (1891) (affirming the possibility of moral life even though values are based in human claims and human judgment).
31. KARL N. LLEWELLYN, THE BRAMBLE BUSH: ON OUR LAW AND ITS STUDY 2 (10th prtg. 1996) (1930).
32. See generally JOHN AUSTIN, LECTURES ON JURISPRUDENCE (Robert Campbell ed., 4th ed. 1873)(1863);H.L.A. HART, THE CONCEFTOF LAW (1961).
33. See KYMLICKA, supra note 23, at l1-20.
34. Id. at 14 (noting the "preference satisfaction" account of utility that assumes that "increasing people's utility means satisfying their preferences, whatever they are");
35. Jules L. Coleman, The Grounds of Welfare, 112 YALE L.J. 1511, 1519 (2003) (arguing that "we cannot infer choice from preference"); id. at 1542-43 (distinguishing between a person's desires and his interests, meaning "what is good for him").
36. See KYMLICKA, supra note 23, at 15-20.
37. 42 U.S.C.§ § 2000a-2000h-6 (2000).
38. See Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 HARV. L. REV. 961, 1338 (2001) ("(Tjhe long-run strategy designed to change preferences may make society as a whole, over time, better off.").
39. This is a version of what Mark Timmons calls the "remote effects" argument. TIMMONS, supra note 24, at 13 7-38.
40. Will Kymlicka argues that utilitarianism is premised on the equality of persons and it therefore cannot consistently value the preferences of individuals who desire to treat others in a manner that does not demonstrate equal concern and respect. See KYMLICKA, supra note 23, at 26-32, 37- 45. For a similar argument, see TIMMONS, supra note 24, at 144-47.
41. See KYMLICKA, supra note 23, at 87 ("The utilitarian idea of giving equal weight to each person's preferences has some initial plausibility as a way of showing equal concern for people's welfare. But, on inspection, utilitarianism often violates our sense of what it is to treat people as equals, especially in its lack of a theory of fair shares."); RICHARDSON, supra note 9, at 155 ("arguing for a conception of rational deliberation of ends that resists the lure of maximization").
42. See ANDERSON, supra note 7, at 68-69 (criticizing the failure of consequentialists to make qualitative distinctions among values and their tendency to avoid embarrassing conclusions suggested by their theory through convenient but dishonest devices like "rule consequentialism, slippery slopes, remote effects, and so forth");
43. see also id. at 89 ("These considerations [of remote effects, slippery slopes, and strategies of indirection, such as rule consequentialism] may generate the intuitively endorsed results, but they fail to explain our confidence in and insistence upon them. Why shouldwe be so confident that remote effects and indirect strategies pan out the way consequentialists need in these cases, when we are so uncertain about consequences and strategies in other cases?"). we be so confident that remote effects and indirect strategies pan out the way consequentialists need in these cases, when we are so uncertain about consequences and strategies in other cases?").
44. On irrelevant reasons, see RICHARDSON, supra note 9, at 61-62.
45. TIMMONS, supra note 24, at 103-21.
46. RONALD DWORKIN, A MATTER OF PRINCIPLE 253 (1985).
47. See FRANK ACKERMAN & LISA HEINZERLING, PRICELESS: ON KNOWING THE PRICE OF EVERYTHING AND THE VALUE OF NOTHING passim (2004); RICHARDSON, supra note 9, at 131 (explaining the difficulty of converting qualitatively distinct values into quantitatively comparable measures); Elizabeth Anderson, Pragmatism, Science, and Moral Inquiry, in IN FACE OF THE FACTS: MORAL INQUIRY IN AMERICAN SCHOLARSHIP 10, 11 (Richard Wightman Fox & Robert B. Westbrook eds., 1998);
48. Joseph William Singer, Something Important in Humanity, 37 HARV. C.R.-C.L. L. REV. 103, 116-19(2002).
49. See ANDERSON, supra note 7, at 210 (arguing that the theory of consumer sovereignty "fails to capture the ways people value goods outside of market contexts, which in principle cannot be measured by a cash value. It also fails to be responsive to the ways citizens think their values should be reflected in public policy").
50. On the special problems posed by other-regarding preferences, see TIMMONS, supra note 24, at 144-47.
51. See id. at 144-45.
52. See jd.; see also GERALD F. GAUS VALUE AND JUSTIFICATION: THE FOUNDATIONS OF LIBERAL THEORY § 20, at 329-36 (1990) (discussing "constrained teleology");
53. AMARTYA SEN, DEVELOPMENT AS FREEDOM 77(1999) ("To insist that there should be only one homogeneous magnitude that we value is to reduce drastically the range of our evaluative reasoning. It is not, for example, to the credit of classical utilitarianism that it values only pleasure, without taking any direct interest in freedom, rights, creativity or actual living conditions.");
54. AMARTYA SEN, RATIONALITY AND FREEDOM 39 (2002) ("Reason has its use not only in the pursuit of a given set of objectives and values, but also in scrutinizing the objectives and values themselves. Maximizing behavior can sometimes be patently stupid and lacking in reasoned assessment, depending on what is being maximized.");
55. Robert C. Hockett, Minding the Gaps: Fairness, Welfare, and the Constitutsve Structure of Distributive Assessment (Cornell Legal Studies Research Paper No. 06-039, 2006), available at http://papers.ssm.comjsol3/ papers.cfm?abstractjd=933 129;
56. Eyal Zamir & Barak Medina, Incorporating Moral Constraints into Economic Analysis (Sep. 1, 2006) (unpublished manuscript), available at http://papers.ssm.com/sol3/papers.cfm?abstractjd=93 1988. For a similar approach from the opposite direction, that is, a deontological, rights-based approach that is combined with utilitarian considerations, see T.M. Scanlon, Rights, Goals, and Fairness, in THEORIES OF RIGHTS 137 (Jeremy Waldmn ed., 1984).
57. See ANDERSON, supra note 7, at 35 (contrasting consequentialist, aggregative, and maximizing norms with expressive and distributive norms);
58. Gillian K. Hadfield, Feminism, Fairness, and Welfare: An Invitation to Feminist Law and Economics, 1 ANN. REV. L. & SOC. SCI. 285, 301 (2005) ("[Tihere are values that human beings receive from nontradeable goods such as the right to be free of harassment, the entitlement to dignity and equality in social processes, or the care that is embedded in particular nonmarket relationships such as the family.").
59. For a critique of such methods, see ACKERMAN & HEINZERLING, supra note 42; David M. Driesen, Is Cost-Benefit Analysis Neutral?, 77 U. COLO. L. REV. 335 (2006);
60. Kent Greenfield & John E. Nilsson, Gradgrind's Education: Using Dickens and Aristotle to Understand (and Replace?) the Business Judgment Rule, 63 BROOK. L. REV. 799 (1997);
61. see also ANDERSON, supra note 7, at 200 ("Cost- benefit analysis is properly committed to the view that people should be able to decide for themselves the values of different risks and to express their values in their choices. But it is mistaken in thinking that people can adequately and autonomously express all their valuations through market relations.").
62. See ANDERSON, supra note 7, at 38 ("[Clonsequentialists recognize only one frame for justifying actions, whereas expressivists recognize different frames for different contexts. ⋯ Because states of affairs have only a context-dependent extrinsic value, it doesn't make sense to globally maximize the value of states of affairs. This is as incoherent as trying to globally maximize the instrumental value of tools, apart from the contexts which give them any usefulness.").
63. See RICHARDSON, supra note 9, at 204 (explaining the importance of criticizing desires rather than merely satisfying them); CHARLES TAYLOR, 1 HUMAN AGENCY AND LANGUAGE: PHILOSOPHICAL PAPERS 66 (1985) ("It is because this [process of normative evaluation] involves ranking motivations that I speak of it as strong evaluation. It means that we are not taking our de facto desires as the ultimate justification, but are going beyond that to their worth. We are evaluating not just objects in the light of our desires, but also the desires themselves.").
64. Joseph William Singer, How Property Nornis Construct the Externalities of Ownership, in PROPERTY AND COMMUNITY (Gregory S. Alexander & Eduardo Penalver eds., Oxford Univ. Press) (forthcoming 2009).
65. RAWLS, supra note 15, § 5.2, at 14.
66. JOHN RAWLS, POLITICAL LIBERALISM 212-54 (1996);
67. see also RAWLS, supra note 15, § 3, at 8 (discussing "a public conception of justice"). For a refreshing approach to the idea of public reason, see Eduardo M. Peñalver, Is Public Reason Counterproductive?, 110W. VA. L. REV. 515(2007).
68. See MICHAELJ. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (2d ed. 1998). On the difficulty (or impossibility) of distinguishing the right and the good, consider Lawrence v. Texas, 539 U.s. 558 (2003), which held that the Constitution does not permit the criminalization of private, consensual sexual conduct among adults. No resolution of this case could have been made that did not significantly burden someone's conception of the good, either by interfering with the ability to engage in intimate personal contact or by promoting conduct incompatible with the traditional family or good morals. Of course, justifications can be constructed that focus on constitutional rights, such as the right to privacy, or democratic powers, such as the power to pass legislation promoting the public welfare, but application of those principles of "right" in a case like this has obvious differential effects on particular comprehensive moral systems-effects that are impossible for a decisionmaker to ignore.
69. MICHAEL J. SANDEI., PUBLIC PHILOSOPHY: ESSAYS ON MORALITY IN POLMCS 147-48 (2005).
70. See Duncan Kennedy, The Rise and Fall of Classical Legal Thought passim (1975) (unpublished manuscript), available at http://duncankennedy.net/ bibliography/alpha.html.
71. See TIMMONS, supra note 24, at 267-70.
72. See IAN SHAPIRO, DEMOCRATIC JUSTICE passim (1999).
73. David L. Shapiro, Courts, Legislatures, and Paternalism, 74 VA. L. REV. 519,567-73 (1988).
74. See Joseph William Singer, Catcher in the Rye Jurisprudence, 35 RUTGERS L. REV. 275 passim (1983);
75. Joseph William Singer, Things That We Would Like to Take for Granted: Minimum Standards for the Legal Framework of a Free and Democraüc Society, 2 HARV. L. & POL'Y REV. 139 passim (2008).
76. See Carol M. Rose, Crystals and Mud in Property Law, 40 STAN. L. REV. 577,608-09(1988).
77. See Wills and Trusts: Murder of Intetsw.te-Spouse--Constasctive Trust, 25 MASS. LAWYERS WEEKLY 1210 (Feb. 10, 1997) (reporting on Lee v. Snell, Mass. Prob. Ct.,No. 95E-0019-GC1).
78. See JOSEPH WILLIAM SINGER, INTRODUCTION TO PROPERTY § 8.2, at 361-62 (2d ed. 2005).
79. On the possibility of justifying normative choices without incontrovertible foundations, see MARK TIMMONS, MORALITY WITHOUT FOUNDATIONS: A DEFENSE OF ETHICAL CONTEXTUALISM 147 (1999) and Arthur Allen Leff, Unspeakable Ethics, Unnatural Law, 1979 DUKE U. 1229.
80. See Robert Audi, Generality and Moral Judgment, in CONTEMPORARY DEBATES IN MORAL THEORY 285, 285-304 (James Dreier ed., 2006);
81. Mark Norris Lance & Margaret Olivia Little, Defending Moral Particularism, in CONTEMPORARY DEBATES IN MORAL THEORY 305, 305-2 1 (James Dreier ed., 2006);
82. TIMMONS, supra note 24, at 245-66.
83. HOWELL E. JACKSON, Louis KAPLOW, STEVEN M. SI-IAVELL, W. K1P ViscuSi & DAVID COPE, ANALYTICAL METHODS FOR LAWYERS (2003).
84. See supra text accompanying notes 31-49.
85. See supra Part II.A.
86. CHRISTINE M. KORSGAARD, The Authority of Reflection, in THE SOURCES OF NORMATIVITY 90, 113-15 (Onora O'Neill ed., 1996);
87. T.M. SCANLON, WHAT WE OWE TO EACH OTHER 4 (1998);
88. see also RAWLS, supra note 15, § 9.2, at 27 (noting that public justifications are "addressed to others who disagree with us" and "appeal[] to beliefs, grounds, and political values it is reasonable for others also to acknowledge");
89. id. § 9.2, at 27-28 ("For justice as fairness to succeed, it must be acceptable, not only to our own considered convictions, but also to those of others. ⋯).
90. TAYLOR, supra note 11, at 99;
91. see also SUSAN NEIMAN, MORAL CLARITY: A GUIDE FOR GROWN-UP IDEALISTS 4 (2008) ("We have moral needs They include the need to see our own lives as stories with meaning-meanings we impose on the world, a crucial source of human dignity-without which we hold our lives to be worthless. Most basically and surprisingly, we need to see the world in moral terms. These needs are grounded in a structure of reason.").
92. See LLOYD L. WEINREB, LEGAL REASON: THE USE OF ANALOGY IN LEGAL ARGUMENT 92 (2005) ("A decision is not a proof; it does not afford certainty, and reasonable persons may disagree. But in law, as in human affairs generally, a proof is not to be had.");
93. Martha C. Nussbaum, Valuing Values: A Case for Reasoned Commitment, 6 YALE J.L. & HUMAN. 197, 202 (1994) (noting that "getting rid of transcendent standards does nor mean getting rid of good reasons").
94. See FOGELIN, supra note 5, at 59-60 ("Reflecting on certain features of a situation can trigger our deontological instincts; reflecting on other features can trigger our consequentialist instincts. Sometimes-perhaps even usually-these instincts support each other. Somerimes, however, they conflict. These, I think, are simply facts about our moral life. The thought that there must be some unifying source for our moral instincts-one that shows their underlying coherence-strikes me as wholly unlikely on its face.");
95. ERIC MACGILVRAY, RECONSTRUCTING PUBLIC REASON 155 (2004) (arguing that we should not assume that public reason requires moving from uncontroversial-and possibly empty-premises to controversial-and substantively charged-conclusions).
96. See TOULMIN, supra note 24, passim (arguing to recreate a sense of the reasonable rather than attempting to define what is rational). As Charles Taylor argues: If you want to discriminate more finely what it is about human beings that makes them worthy of respect, you have to call to mind what it is to feel the claim of human suffering, or what is repugnant about injustice, or the awe you feel at the fact of human life. No argument can take someone from a neutral stance towards the world, either adopted from the demands of "science" or fallen into as a consequence of pathology, to insight into moral ontology. But it doesn't follow from this that moral ontology is a pure fiction, as naturalists often assume. Rather we should treat our deepest moral instincts, our ineradicable sense that human life is to be respected, as our mode of access to the world in which ontological claims are discernible and can be rationally argued about and sifted.
97. TAYLOR, supra note 11, at 8; accord, KYMLICKA, supra note 23, at 44 ("The question is which form of equal treatment best captures that deeper ideal of treating people as equals. That is not a question of logic. It is a moral question, whose answer depends on complex issues about the nature of human beings and their interests and relationships. In deciding which particular form of equal treatment best captures the idea of treating people as equals, we do not want a logician, who is versed in the art of logical deductions. We want someone who has an understanding of what it is about humans that deserves respect and concern, and of what kinds of activities best manifest that respect and concern.").
98. See TAYLOR, supra note 11, at 4 ("[Sjtrong evaluation⋯ involve[s] discriminations of right or wrong, better or worse, higher or lower, which are not rendered valid by our own desires, inclinations, or choices, but rather stand independent of these and offer standards by which they can be judged.").
99. See id. at 16-17 (discussing the importance of "articulating" and thus "making sense" of the "background picture' lying behind our moral and spiritual intuitions");
100. Id. at 3-52 (discussing generally the role and importance of moral frameworks).
101. Id. at 4;
102. see also TAYLOR, supra note 50, at 3 (defining a "strong evaluation" as "a background of distinctions between things which are recognized as of categoric or unconditioned or higher importance or worth, and things which lack this or are of lesser value").
103. ARISTOUE, ETHICS 5 (John Warrington trans. & ed., J.M. Dent & Sons Limited 1963).
104. As Isaiah Berlin argued in a 1957 radio address: The arts of life-not least of politics-as well as some among the human studies turn Out to possess their own special methods and techniques, their own criteria of success and failure⋯ Bad judgment here consists not in failing to apply the methods of natural science, but, on the contrary, in over-applying them⋯ To be rational in any sphere, to apply good judgement in it, is to apply those methods which have turned out to work best in it⋯ [To demand anything elsel is mere irrationalism.
105. Political Judgment (BBC Third Programme radio broadcast June 19, 1957), quoted in TOULMIN, supra note 24, at viii.
106. See FOGELIN, supra note 5, at 61-62 ("It is essential to see that an irreconcilable moral conflict can exist without bringing all morality down around it. ⋯ Thinking otherwise is almost certainly the result of placing ultrarationalist demands on moral systems: They are either dilemma-free or wholly arbitrary. A leading aim of this work is to break the spell of thinking of that kind.");
107. KYMLICKA, supra note 23, at 44-45 ("What we have in political argument is not a single premise and then competing deductions, but rather a single concept and then competing conceptions or interpretations of it. Each theory of justice is not deduced from the ideal of equality, but rather aspires to it, and each theory can be judged by how well it succeeds in that aspiration.");
108. CHARLES TAYLOR, supra note 11, at 7 (arguing that modernity has inherited "a deeply wrong model of practical reasoning, one based on an illegitimate extrapolation from reasoning in natural science").
109. See RAWLS, supra note 15, at 30 ("Many of our most serious conflicts are conflicts within ourselves. Those who suppose their judgments are always consistent are unreflective or dogmatic; not uncommonly they are ideologues and zealots.");
110. TIMMONS, supra note 24, at 96-97, 267-70 (arguing for "limited moral pluralism").
111. See generally KEITH TOPPER, THE DISORDER OF POLITICAL INQUIRY (2005).
112. See KYMLICKA, supra note 23, at 45 ("To demand that [political argument] achieve logical proof simply misunderstands the nature of the exercise.").
113. On felt obligations, Charles Taylor explains: For I do not just feel desire to help this man, Indeed, I might feel no such desire in the usual sense of the term. But I feel called upon to help him. And I feel called upon qua rational being, or moral being, or creature made by God in his image, in other words capable of responding to this like God, that is, out of agape.
114. TAYLOR, supra note 50, at 58.
115. See TOULMIN, supra note 24, at 15 (contrasting the "reasonable" and the "rational").
116. MOOTZ, supra note 26, at 13 2-33.
117. See Anderson, supra note 42, at 23 ("The subject matter of humanistic and social scientific inquiry is ourselves. This fact has inescapable practical implications. As Charles Taylor has emphasized, it is part of our nature as self-interpreting, deliberative beings that we must act on our understandings of who we are.").
118. See RICHARDSON, supra note 9, at 305 (explaining his "theory of critically relative rationality").
119. Pirkei Avot (Sayings of the Fathers) 2:21 (Joseph William Singer trans.).
120. T. H. WHITE, THE BOOK OF MERLYN: THE UNPUBLISHED CONCLUSION TO THE ONCE ANDFUTURE KING 42(1977).
121. I do not mean to argue that all moral and political theorists misunderstand the complexity of moral choices and legal structures supporting a free and democratic society. Indeed, a number of important theorists have articulated and defended the idea that values are complicated, contextually contingent, plural in nature, and conflicting in application, and that the only reasonable way to handle such complexity is through a form of practical reason rather than a tight deductive or logical system of concepts. This Article builds on their work. Examples include ANDERSON, supra note 7;
122. FOGELIN, supra note 5;
123. RICHARDSON, supra note 9;
124. TAYLOR, supra note 11;
125. TIMMONS, supra note 24;
126. MARGARET URBAN WALKER, MOL UNDERSTANDINGS (1998);
127. Anderson, supra note 42;
128. Margaret Urban Walker, Moral Understandings: Alceniatwe 'Epistemology" for a Feminist Ethics, HYPATIA, Summer 1989, at 15. My point is not that no philosophers have recognized the complexity of moral life, but that because lawyers are charged with constructing rules and principles to guide numerous real world situations, they have rich experience in applied moral and political theory that tends to cause them to accept the idea that complexity is inevitable and that abstract theories are unlikely to dissolve complexity.
129. Even a few scholars are seduced by such impossible dreams of simplicity. See, e.g., RICHARD A. EPSTEIN, SIMPLE RULES FOR A COMPLEX WORLD (1995).
130. See RICHARDSON, supra note 9, at xi ("discerning the true complexity of value").
131. See Kennedy, supra note 56, at 9.
132. William Echikson, Euphoria Dies Down in Czechoslovakia, WALL ST. J., Sept. 18, 1990, at A26.
133. See Jason Brennan, Beyond the Bottom Line: The Theoretical Aims of Moral Theorizing, 28 OXFORDJ. LEGAL STUD. 277, 294 (2008).
134. See id. at 29 1-94.
135. See NEIMAN, supra note 70, at 205 ("Why suppose that rules that don't get you absolute certainty get you nothing worth having at all?"); RICHARDSON, supra note 9, at 70-71 (discussing "logically nonabsolute norms");
136. id. at 77-79 (explaining the importance of specification).
137. See Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 NW. U. L. REV. 1283 passim (1996).
138. Steven Toulmin and Elizabeth Anderson have both noted the importance of context for understanding the meaning of human events. See TOULMIN, supra note 24, at 21;
139. Anderson, supra note 42, at 17-22.
140. See NEIMAN, supra note 70, at 11 ("No law applies itself, ever.");
141. TOULMIN, supra note 24, at 27 ("The general concepts in which we articulate our ideas and beliefs have formal implications, and it is the task of theoretical analysis to sort out and elucidate them. But, by itself, such a theoretical analysis does not tell us in what situations-how, where, or when-everyday life and practice exemplify those ideas.").
142. LLEWELLYN, supra note 28, at 48.
143. See ANDERSON, supra note 7, at 30 ("No adequate interpretation of a way of valuing something can reduce its motivational component to a desire or preference that some states of affairs occur. They must be brought about in the right ways, by the right agents, in the right context ⋯ Whether desiring, aiming at, or achieving a given state of affairs adequately expresses the right attitudes toward people and things depends on the context that determines its expressive meaning.").
144. See TOULMIN, supra note 24, at 123 ("In place of abstract universal concepts, practical disciplines focus on particular episodes. Convincing narratives have a kind of weight that mathematical formulas do not.").
145. Id. at 124 ("Despite all the subtlety and depth they display in abstract general terms, the conclusions of a book like John Rawls's Theory of Justice provide no effective criteria for settling real- life disputes in actual cases.");
146. Dennis M. Patterson, Law's Pragmatism: Law as Practice & Narrative, 76 VA. L. REV. 937 passim (1990) (explaining the centrality of narrative to legal reasoning).
147. Kelo v. City of New London, 545 U.S. 469 (2005).
148. Id. at 483.
149. Id. at 494 (O'Connor, J., dissenting).
150. Id. at 522 (Thomas, J., dissenting).
151. See, e.g., David Barton, Eminent Domain Is Dead! (Long Live Eminent Domain), BOSTON GLOBE, Apr. 16, 2006, at Dl.
152. See TOULMIN, supra note 24, at 133 ("[I]ndividual cases in all their particularity cannot be simply 'deduced from' universal and general principles of a theoretical kind: at best, theories can be required to 'make sense of' the ways in which we succeed in dealing with particular cases. Theory (so to speak) is not a foundation on which we can safely construct Practice; rather, it is a way of bringing our external commitments into line with our experience as practitioners.").
153. On incommensurable values, see RICHARDSON, supra note 9, at 89-118.
154. On "limited moral pluralism," see TIMMONS, supra note 24, 189-208.
155. On the nature of plural goods, see TAYLOR, supra note 14, at 230-47.
156. Cf. FOOEL1N, supra note 5, at 66 ("[C]ontradiction and other forms of incoherence can⋯ arise because we, as human beings, lead complex, multisided lives carrying commitments that cannot be resolved into a coherent unity without severe loss.").
157. See ANDERSON, supra note 7, at 66-73 (discussing the difference between qualitative and quantitative methods of evaluation); id. at 72 ("I claim that it malces sense to value different goods in different ways and that we have little idea of what human life could be if it did not engage in social practices that supported different ways of valuing things.");
158. see also Benjamin C. Zipursky, Pragmatic Conceptualism, 6 LEGAL THEORY 457,459(2000) (developing a pragmatic approach to conceptual distinctions).
159. See ANDERSON, supra note 7, at 70-71 (arguing that "[t]wo goods are incomparable in intrinsic worth if they are not candidates for the same mode of valuation," and that "[al practice is degrading when it expresses a lower valuation of something than it merits").
160. See RICHARDSON, supra note 9, at 271-308.
161. The notion that moral reasoning is based on plural basic values and that many moral choices are not determined by those basic values is recognized by some moral theorists. See TIMMONS, supra note 24, at 267-70.
162. For a description and defense of practical reason, see Anderson, supra note 42, at 14-22.
163. Practical reason requires what Mark Johnson usefully calls "moral imagination." See MARK JOHNSON, MORAL IMAGINATION: IMPLICATIONS OF COGNITIVE SCIENCE FOR ETHICS (1993).
164. Heargues, for example, that "[wie must be able to project beyond clear cases that are morally unproblematic to those that are either nonprototypical or completely novel in our experience. There are no rules to tell us how to perform this crucial task, yet it is the essence of our moral deliberation." Id. at 3-4;
165. see a'so STEVEN L. WINTER, A CLEARING IN THE FOREST: LAW, LIFE, AND MIND xiii (2001) ("V/hat enables effective action is not transcendental truth but pragmatic knowledge-that is, the smaller human truths that best explain how we think and act within the complex social webs that we inhabit (and that inhabit us).").
166. RICHARDSON, supra note 9, at 292-307.
167. Cf. RAWLS, supra note 15, at 27 (noting that public justifications are "addressed to others who disagree with us" and "appeal[] to beliefs, grounds, and political values it is reasonable for others also to acknowledge");
168. id. at 27-28 ("For justice as fairness to succeed, it must be acceptable, not only to our own considered convictions, but also to those of others );
169. see also CHARLES LARMORE, THE MORALS OF MODERNITY 8, 12 (1996) (locating moral justification in the human practice of "reflection upon reasons for belief and action" and arguing that "[un modern ethics, the expectation of disagreement [on the nature of the good life] has turned attention toward a core morality on which reasonable people ⋯ can nonetheless agree");
170. id. at 96 ("Moral knowledge is⋯ best understood as one species of the reflective knowledge of reasons rather than as a kind of perceptual knowledge.");
171. RAWLS, supra note 15, at 17 (arguing that the "principles of justice the parties [in the original position] would agree to⋯ would specify the terms of cooperation that we regard-here and now-as fair and supported by the best reasons") (emphasis added);
172. see generally KORSGAARD, supra note 69, at 113-15;
173. SCANLON, supra note 69, at 4. On the ways in which reasongiving constrains judgment, see Nussbaum, supra note 71, at 209.
174. DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION (1997); KARL N. LLEWELLYN, THE COMMON LAW TRADITION 19-61 (1960) (describing "steadying factors" that constrain judicial discretion).
175. CHARLES TAYLOR, MODERN SOCIAL IMAGINARIES 23 (2004).
176. TAYLOR, supra note 11 at 3-4,8.
177. See Singer, supra note 60, passim.
178. TAYLOR, supra note 11, at 8-11;
179. see id. at 34 (arguing that "articulation" involves "try[ingl to increase our understanding of what is implicit in our moral and evaluative languages");
180. id at 41 (discussing the need to "explore the background pictures which underlies our moral intuitions");
181. see also Charles Taylor, Leading a Life, in INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON 170, 170(RuthChanged., 1997).
182. See RICHARDSON, supra note 9, at 271.
183. See id. at 292.
184. 277 A.2d 369 (N.J. 1971).
185. Id. at 370.
186. Id.
187. Id.
188. Id.
189. Id.
190. See Joseph William Singer, Nine-Tenths of the Law: Title, Possession, and Sacred Obligations, 38 CONN. L. REV. 605 passim (2006).
191. Joseph William Singer, The Ownership Society: Regulatory Takings and Just Obligations, 30 HARV. ENVTL. L. REV. 309 passim (2006).
192. Shack, 277 A.2d at 374-75.
193. Id.
194. See RICHARDSON, supra note 9, at 4 ("There is no uniquely canonical way to phrase a practical question."). For an excellent example of how framing matters, see Robert W. Gordon, Unfreezing Legal Reality: Cridcal Approaches ta Law, 15 FLA. ST. U. L. REV. 195 (1987).
195. See Singer, supra note 51.
196. See Shock, 277 A.2d at 374.
197. Singer, supra note 60, passim.
198. Jedediah Purdy, People as Resources: Recruitment and Reciprocity in the Freedom-Promoting Approach to Property, 56 DUKE L.J. 1047, 1094 (2007);
199. see also ANDERSON, supra note 7, at 165 ("(L]ibertarians [1] argue that any constraints on people's freedom to alienate their property in themselves are paternalistic violations of liberty.⋯ But in democratically prohibiting the market alienation of certain goods embodied in the person, people exercise collective autonomy over the background conditions of their interaction.") (citing John Hospers, The Libertarian Manifesto, in MORALITY IN PRACTICE 23, 27 (James Sterba ed. 3d ed. 1991) & ROBERT N0ZICK, ANARCHY, STATE, AND UTOPIA 331 (1974);
200. Elizabeth S. Anderson, What is the Point of Equality?, 109 ETHICS 287, 289 (1999);
201. Singer, supra note 60.
202. See also WESTEN, supra note 19;
203. accord, JOHNSON, supra note 118, at 11 ("[N]arrative is a fundamental mode of understanding, by means of which we make sense of all forms of human action."). Trial lawyers are intensely aware of the ways in which both jurors and judges understand cases by constructing the story. See ERIC OLIVER, FACTS CAN'T SPEAK FOR THEMSELVES: REVEAL THE STORIES THAT GIVE FACTS THEIR MEANING 6 (2005) ("It is not the facts, but the stories the decision makers build from and around those facts that create the personal meanings that lead to judgments for and against those listener created stories.").
204. WALKER, supra note 90, passm.
205. State v. Shack, 277 A,2d 369,372 (N.J. 1971).
206. BARBARA EHRENREICH, NICKEL AND DIMED: ON (NOT) GETTING BY IN AMERICA 221 (2001).
207. Shack, 277 A.2d at 374.
208. Id. at 373.
209. TIMMONS, supra note 64, at 6;
210. see also Anderson, supra note 42, at 21-22 ("[Tjhe question of what is good and right is largely answered by articulating the field of thick evaluative concepts in terms of which we ought to describe, discriminate, and experience ourselves and the world.");
211. NEIMAN, supra note 70, at 19 ("Truth tells us how the world is; morality tells us how it ought to be.");
212. id. at 147 ("The claim of equality flies in the face of painful and urgent realities. It does make sense as a demand.").
213. See TIMMONS, supra note 64, passim;
214. see also RICHARDSON, supra note 9, at 203 ("Any end that stands firm on reflection can be accepted as a ground of justification.");
215. Terry Horgan & Mark Timmons, Morality Without Moral Facts, in CONTEMPORARY DEBATES IN MORAL THEORY 220, 220-38 (James Dreier ed., 2006).
216. TIMMONS, supra note 64, at 147.
217. Genesis (Bereishit) 4:10.
218. See JOHN FINNIS, FUNDAMENTALS OF ETHICS 21-22 (1983) ("What one can and should say about human nature, as the result of one's ethical inquiries, is not mere rhetorical addition; it finds a place in the sober and factual account of what it is to be a human being.");
219. id. at 62-63 ("But what is in my interests is certainly not sufficiently to be determined by asking what I happen to take an interest in (desire, aim for⋯). The decisive question always is what it is intelligent to take an interest in. There are no 'interests' (desires⋯) that are immune from that question."); KYMLICKA, supra note 23, at 43 (noting that "human beings matter and matter equally").
220. THOMAS HOBBES, LEVIATHAN 227 (C.B. MacPherson ed. Penguin Books 1976) (1651) (noting that government is instituted "to defend them from⋯ the injuries of one another, and thereby to secure them in such sort, as that by their owne industrie, and by the fruites of the Earth, they may nourish themselves and live contentedly⋯");
221. see also id. at 254 ("[P]reservation of life being the end, for which one man becomes subject to another );
222. id. at 188 ("The Passions that encline men to Peace, are Feare of Death; Desire of such things as are necessary to commodious living; and a Hope by their Industry to obtain them.").
223. IMMANUEL KANT, GROUNDWORK OF THE METAPHYSICS OF MORALS 41 (Mary Gregor ed. & trans., Cambridge Univ. Press 1997) (1785). For a discussion of Kant's philosophy, see generally KORSGAARD, supra note 69, 90-130;
224. SCANLON, supra note 69, at 4.
225. Joseph William Singer, After the Flood: Equality and Humanity in Property Regimes, 52 LOY. L. REV. 243,307-13 (2006).
226. See MARTHJ ALBERTSON FINEMAN, THE AUTONOMY MYTH: A THEORY OF DEPENDENCY (2004);
227. CAROL GILLIGAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN'S DEVELOPMENT (1993); MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION, AND AMERICAN LAW (1990);
228. NEL NODDINGS, CARING: A FEMININE APPROACH TO ETHICS AND MORAL EDUCATION (2d ed. 2003).
229. TAYLOR, supra note 11, at 5.
230. Id. at 4 ("Perhaps the most urgent and powerful cluster of demands that we recognize as moral concern the respect for the life, integrity, and well-being, even flourishing, of others. These are the ones we infringe when we kill or maim others, steal their property, strike fear into them and rob them of peace, or even refrain from helping them when they are in distress. Virtually everyone feels these demands, and they have been and are acknowledged in all human societies.").
231. ALAN DERSHOWITZ, RIGHTS FROM WRONGS: A SECULAR THEORY OF THE ORIGINS OF RIGHTS 7 (2004);
232. BARRINGTON MOORE, JR., REFLECHONS ON THE CAUSES OF HUMAN MISERY AND UPON CERTAIN PROPOSALS TO ELIMINATE THEM 1-13 (1970).
233. 277 A.2d 369 (N.J. 1971).
234. Id. at 374.
235. 163. Id.
236. Id. at 372. On the role of needs in moral theory, see Soran Reader & Gillian Brock, Needs, Moral Demands and Moral Theory, 16 UTILITAS 251, 252-57 (2004) (explaining the concept of a "morally important need").
237. Cf. FINNIS, supra note 153, at 60 (explaining the naturalness of using ought statements to express a sense of obligation or of right conduct).
238. TAYLOR, supra note 11, at 7.
239. FINNIS, supra note 153, at 35-36 (arguing that practical reasoning rests, not on satisfying wants, whatever they happen to be, but on "identifying the desirable" or the use of intelligence to determine what we should want).
240. On specification of general norms and concepts, see RICHARDSON, supra note 9, at 69-82.
241. Alan Schwartz, Justice and the Law of Contracts: A Case for the Tradiuonai Approach, 9 HARV.J.L. & PUB. POL'Y 107,114-15(1986).
242. State v. Shack, 277 A.2c1 369, 374-75 (N.J. 1971).
243. See supra Part II.A.2.
244. See Singer, supra note 60, passim. As Elizabeth Anderson argues: [D]emocratic institutions are needed to enable people to express certain kinds of valuations that can be expressed only in non-market social relations. Some of the concerns people have as citizens cannot in principle be expressed in their roles as consumers, but must be expressed through their political relations with other citizens. Consumers act individually, taking the background social relations of their interactions for granted and generally assuming an instrumental attitude toward these relations. In their roles as consumers, they have little power over the social relations and norms governing their interactions, and hence little scope for expressing intrinsic concerns about their relations in market interactions. Citizens act collectively, taking their social relations as an immediate, intrinsic object of concern. Because these relations are constituted by shared legal, ethical, and social norms, people can reform them only through collective action. People care about the meanings embodied in the social relations in which risks are imposed and controlled, not just about the raw magnitudes and financial benefits of these risks. They also care about the character of their social life. ⋯ Since people rationally express different valuations in different social contexts, cost-benefit analysis deprives them of opportunities to express distinctively non-economic concerns in taking consumer preferences as normative for democratic politics.
245. ANDERSON, supra note 7, at 211-12;
246. see also RAWLS, supra note 15, at 44 ("A free market system must be set within a framework of political and legal institutions that adjust the long-run trend of economic forces so as to prevent excessive concentrations of property and wealth, especially those likely to lead to political domination.").
247. See RICHARDSON, supra note 9, at 300 (noting that the "holistic dialect⋯ builds from something that [we] do, in fact, accept").
248. TAYLOR, supra note 11, at 4 (finding that a "strong evaluation⋯ involve[s] discriminations of right or wrong, better or worse, higher or lower, which [is] not rendered valid by our own desires, inclinations, or choices, but rather stand[s] independent of these and offer standards by which they can be judged").
249. Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 26,30-33 (1914); Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 Wis. L. REV. 975,986-87.
250. WALKER, supra note 90; Jennifer Nedeisky, Law, Boundaries, and the Bounded Self, 30 REPRESENTATIONS 162 (1990);
251. Jennifer Nedelsky, Reconceieing Rights as Relationships, 1 REV. CONST. STUDIES/REVUE D'ÉTUDES CONSTIUTHONELLES 1 (1993);
252. see also MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION, AND AMERICAN LAW (1990);
253. JOSEPH WILLIAM SINGER, ENTITLEMENT (2000); ELIZABETH V. SPELMAN, INESSENTIAL WOMAN: PROBLEMS OF EXCLUSION IN FEMINIST THOUGHT (1988).
254. Cf. KYMLICKA, supra note 23, at 103-27 (noting how initial property allocations can give owners power over nonowners),
255. See id. at 90 (arguing that it is important to "ensure that the advantaged do not have the power to define relationships of dominance and servility in the workplace").
256. LLEWELLYN, supra note 121, at 121-57;
257. see also Todd D. Rakoff, Implied Terms: C "Default Rules" and "Situation-Sense," in GOOD FAITH AND FAULT IN CONTRACT LAW 191 passim (Jack Beatson & Daniel Friedmann eds., 1995).
258. There is a rich debate about the normative status and appropriate use of analogy. See Scott Brewer, Exemplary Reasoning: Semantics, Pragrnatics, and the Rational Force of Legal Argument by Analogy, 109 HARV. L. REV. 923 (1996);
259. LLOYD L. WEINREB, LEGAL REASON (2005).
260. This concept comes from conflict of laws. Brainerd Currie, the inventor of "interest analysis," argues that conflicts of law between two different states could be resolved by determining whether both states bad a legitimate interest in applying their law to the case at band. If they did, he suggests taking a second look at the state interests to determine the possibility of engaging in a restrained interpretation of state interests to conclude that one of the states has no real interest in applying its law to the parties, transaction, or occurrence, either because the parties' relationship is centered in another state or because the state has an affirmative interest in comity by allowing another state to regulate the events or relationships in the case. Brainerd Currie, The Disinterested Third State, 28 L. & CONTEMP. PROBS. 754, 757 (1963);
261. see also WILLIAM M. RICI-IMAN & WILLIAM L. REYNOLDS, UNDERSTANDING CONFLICT OF LAWS 249-5 1 (3d ed. 2002);
262. ANDERSON, supra note 7, at 62-63 ("The application of intuitive principles requires an interpretation of their underlying expressive point in light of the relations the agent has to the people for whose sake she acts. If different principles appear to generate conflicting recommendations, the task for a rational agent is not to weight and aggregate their consequences, but to seek more refined interpretations of their demands so that all of them can be satisfied. This is the traditional task of casuistry, reasoning by analogy, and the other commonsense modes of practical reasoning familiar to ordinary life." (citation omitted)); RICHARDSON, supra note 7, at 127 ("The alternative⋯ is to find some way to restrict the scope of application of these [conflicting] principles so that they are kept out of each other's way id. at 170 (arguing that specifying the meaning of a norm requires careful attention to its appropriate range of application, resulting in modification of the original norm so that it coheres with other norms).
263. State v. Shack, 277 A.2d 369,374 (N.J. 1971).
264. RONALD DWORKIN, LAW'S EPIRE 239(1986) (The judge's decision-his postinterpretive conclusions-must be drawn from an interpretation that both fits and justifies what has gone before, so fr as that is possible.").
265. See ANDERSON, supra note 7 (describing the importance of different ways of valuing different human interests);
266. KYMLICKA, supra note 23, at 144 ("[Wihen we think about the value of different liberties in relation to people's interests, we see that some liberties are more important than others, and indeed some liberties are without value entirely. ⋯"); April Flakne, Through Thick and Thin: Validity and Reflective Judgment, 20 HYPATIA 115, 115-16 (2005) ("[A]ny attempt to apply an ethical term with an intuitive content within an existing vocabulary to a new or different context itself involves an act of judgment.");
267. see also Sidney A. Shapiro & Christopher H. Schroeder, Beyond Cost-Benefit Analysis: A Pragmatic Reorientation, 32 HARV. ENVTL. L. REV. 433, 498 (2008) ("[O]ne does not have to monetize pros and cons to weigh them.").
268. Shack, 277 A.2d at 374.
269. Id.
270. KORSGAARD, supra note 69;
271. SCANLON, supra note 69.
272. RAWLS, supra note 15.
273. See Samuel Freeman, Moral Contractarianism as a Foundation for Interpersonal Morality, in CONTEMPORARY DEBATES IN MORAL THEORY 57-76 (James Dreier ed., 2006).
274. Jedediah Purdy, A Freedom-Promoting Approach to Property: A Renewed Tradition for New Debates, 72 U. CHI. L. REV. 1237 (2005);
275. Singer, supra note 156;
276. Singer, supra note 60.
277. RAWLS, supra note 15, at 29-32;
278. see also RICHARDSON, supra note 9, at 178 (discussing Rawls's method of reflective equilibrium).
279. See KYMLICKA, supra note 23, at 67 (describing reflective equilibrium as "work[ing] from both ends").
280. ALASDAIR MACINTYRE, THREE RIVAL VERSIONS OF MORAL ENQUIRY: ENCYCLOPAEDIA, GENEALOGY, AND TRADITION possim (1990).
281. LLEWELLYN, supra note 121, at 213-35;
282. see also Brett G. Scharffs, Law as Craft, 54 VAND. L.REV. 2245 passitn (2001).
283. See RICHARDSON, supra note 9, at 4, passim (discussing the nature of "practical deliberation").
284. FOGELIN, supra note 5, at 45.
285. ANDERSON, supra note 7, at 136.
286. Johan Willem Gous Van der Walt, The Twilight of Legal Subjectivity: Towards a Deconstructive Republican Theory of Law 431 (July 1995) (unpublished Doctor of Laws thesis, Rand Afrikaans University) (on file with Langdell Library, Harvard Law School).
287. ST. AUGUSTINE, CONFESSIONS 78 (R. Pine-Coffin trans., 1961);
288. see Leff, supra note 64, at 1249 ("All I can say is this: it looks as if we are all we have.").
289. TAYLOR, supra note 50, at 74-75.
290. Id. at 121;
291. see also Flalcne, supra note 184, at 116 ("My goal is to show that the application of thick ethical concepts is best understood as a process of reflective rather than deductive judgment; that this reflective process means that thick ethical concepts facilitate rather than halt ethical understanding and transformation; and that such reflective processes, though interpretive, produce their own kind of validity without recourse to thin, purportedly neutral, universal or context-independent ethical terms.").
292. See RICHARDSON, supra note 9, at 298 (arguing that "the mere multiplicity of incommensurable conceptions does not mean that Dionysian revelry is all that one is left with: A more objective approach, extending to collective rationality if not indeed to objective truth, is possible").
293. Abraham Lincoln, The Gettysburg Address (Nov. 19, 1863).
294. JEAN-FRANAIS LYOTARD, THE POSTMODEBN CONDITION (Geoff Bennington & Brian Massumi trans., University of Minn. Press 1984). For an argument that postmodern insights are not incompatible with ethics, see BAUMAN, sipra note 22.
295. On this point, see generally MARTHA C. NUSSBAUM, THE FRAGILITY OF GOODNESS: LUCK AND ETHICS IN GREEK TRAGEDY AND PHILOSOPHY (1986).
296. CHARLES TAYLOR, A SECULAR AGE 54(2007).
297. See TAYLOR, supra note 14, at 53 (explaining that reasoning may be "unformalizable" but nonetheless productive of "insight") ; TIMMONS, supra note 24, at 96-97 ("Fun cases of conflict we simply must appeal to the details of the case at hand and use good moral judgment to decide which rule, in that particular case, should be followed.⋯ The key idea here is that in cases of conflict, there is no supreme moral principle or superrule that determines what we are to do; rather, in such cases, moral judgment must take over.").
298. See RAWLS, supra note 15, at 31 ("The most reasonable political conception for us is the one that best fits all our considered convictions on reflection and organizes them into a coherent view. At any given time, we cannot do better than that.");
299. RICHARDSON, supra note 9, at 189 ("Since [my view] puts forward no further standards by which the agent is to determine what is acceptable upon reflection, there is necessarily a nondiscursive layer to this view. Practical justification will not turn out to be discursive 'all the way down.' Since the justificational view is holistic and bidirectional, however, it is always open to the agent to keep pursuing the question why, if doing so proves fruitful. The existence of this ineliminable element of intuition in the account of justification does not imply that it traces justification back to self-certifying intuitions. ⋯ Instead, the rational support⋯ that derives from providing an improvement in mutual support among the norms found acceptable upon reflection may always be viewed as rebuttable by further considerations.");
300. TAYLOR, supra note 50, at 62 ("Now our direct, intuitive experience of import is through feeling. And thus feeling is our mode of access to this entire domain of subject-referring imports, of what matters to us qua subjects, or of what it is to be human. We may come to feel the force of some imports through having explained to us their relations to others, but these we must experience directly, through feeling. The chain of explanations must be anchored somewhere in our intuitive grasp of what is at stake.").
301. See FINNIS, supra note 153, at 67 ("Better and worse practical judgments can be argumentatively distinguished, though not always ordered; in that sense, at least, practical judgments can have objectivity, and there can be practical wisdom and unwisdom.");
302. id. at 91 ("The making of basic commitments is not arbitrary, directionless or indiscriminate, It is mere technocratic illusion to suppose that a choice not guided by cost-benefit computations must be arbitrary. On the contrary, the adoption of basic commitments is to be guided by all the requirements of practical reasonableness.").
303. See RICHARDSON, supra note 9, at 182 ("All arguments must come to an end somewhere, Wittgenstein remarked. One way to put my present point, however, is that on the model I propose there is never any one particular place at which deliberative argument-or discursive practical reasoning-must come to an end. It is the sovereign deliberator who declares closure, as it were, not some ultimate principle.");
304. see also David Cole, Letter to the Editor, "How to Skip the Constitwion": An Exchange, N.Y. REV. OF BOOKS, Jan. 11, 2007, at 63 ("It is true that text, precedent, tradition, and reason do not determine results in some mechanistic way. That is why we ask judges, not machines, to decide constitutional cases. But these sources are nonetheless critically important constraints on and guides to constitutional decision-making. They are what identify those principles that have been deemed fundamental-and therefore constitutional-over our collective history. That there are differences over principle in no way excludes the need for reasoned argument about them."). See NEIMAN, supra note 70, at 424 ("We are finite and fallible and struggling, and we are nonetheless the source of moral reasoning."); Id. ("Negotiating small differences is part of being grownup; no one can tell you in advance where to put your foot down.").
305. See FINNIS, supra note 153, at 127 ("(WIe are left with no reasonable alternative to the principle of unconditional respect for persons.");
306. TAYLOR, supra note 50, at 60 (discussing the "reflexive sense of what matters to us as subjects, as being distinctively human⋯ [or] a sense of what it is to be human"); Singer, supra note 156, at 338-43.
307. Singer, supra note 60.