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 and that of politics. Inspired by Williams, many scholars have discussed this concept and its related phenomenology in several other contexts, such as lawyering, health care, and military actions.
It is striking that the concept of a moral remainder has rarely been discussed in the context of legal decision-making. In liberal legal orders that aim to comply with the norms of justice, the everyday practice of legal decision-making partly consists of judges making decisions that, although they may be legally justified, nonetheless negatively affect fundamental interests of the ‘losing’ party. How best to conceptually grasp this troublesome phenomenon is a question that mainstream legal theory has hardly grappled with, nor has the concept of moral remainder been seriously considered to be part of the answer …
van Domselaar, Iris, Law’s Regret: On Moral Remainders and a Virtue-Ethical Approach to Legal Decision-Making (May 18, 2020).
First posted 2020-06-16 05:39:02
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