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 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. This article, by contrast, develops the claim that the concept of a moral remainder is highly relevant for both the theory and practice of judicial decision-making in a liberal legal order. First, the author offers an overview of the discussion of the concept of moral remainder within practical philosophy. Second, she addresses the question of why the concept of a moral remainder has hardly been dealt with within legal theory. Moreover, it will be argued that, despite the fact that postmodern accounts have indeed touched upon the troublesome phenomenology of legal decision-making, this concept is most naturally situated within a virtue-ethical approach to legal decision-making. Finally, the author will flesh out the main implication of incorporating the concept of a moral remainder within a virtue-ethical account of legal decision-making and show that this concept provides a valuable amendment to such an account—at least from the viewpoint of legitimacy in a liberal legal order.