Abstract:
Legal standards are often valued for their flexibility and their susceptibility to nuanced, context-sensitive interpretation. Legal rules are usually celebrated for their clarity and certainty. The received wisdom is that the merits of the one form represent the demerits of the other. Standards, for instance, facilitate contextual, individualized application of the law and allow for greater adaptation to changing circumstances and an unfolding evolution of legal understanding, but these virtues are thought to come, unfortunately, at the expense of notice and transparency.
This Essay disputes the received wisdom by celebrating rather than lamenting the opaque features of standards. I argue that the stock story offers an incomplete perspective. By framing the prima facie unclarity and uncertainty of legal standards as a defect, the traditional picture ignores the salutary impact that superficial opacity may have on citizens’ moral deliberation and on robust democratic engagement with law. The superficial opacity of standards is often a virtue because it encourages citizens and public officials to engage with the moral values embedded in the law. Such engagement may promote deeper understanding of the law, greater levels of dialogue about the moral aims of the law, and a broader, de-centralized, democratic involvement of the citizenry in process of legal interpretation. The Essay discusses salutary mechanisms of inducing moral deliberation as well as mechanisms that are offensive to autonomy and freedom of thought
Shiffrin, Seana, The Moral Neglect of Negligence (April 18, 2016). Oxford Studies in Political Philosophy, David Sobel, Peter Vallentyne, and Steve Wall, eds. Oxford University Press, forthcoming; UCLA School of Law, Public Law Research Paper No 16-19.
First posted 2016-04-19 06:30:28
Leave a Reply