Law’s regret: on moral remainders, (in)commensurability and a virtue-ethical approach to legal decision-making

Abstract

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. Inspired by Williams, many scholars have discussed this concept in several professional contexts. However, to date, the concept of a moral remainder has rarely been discussed in the context of legal decision-making. This is striking because this practice largely consists of judges making decisions that, although they may be legally justified, nonetheless negatively affect fundamental interests of the losing party. Hence, this article elaborates on the relevance of Williams's concept of a moral remainder in the theory and practice of legal decision-making in a liberal legal order. Moreover, it argues that the concept of a moral remainder is not only most naturally situated within but also a welcome complement to a virtue-ethical approach to legal decision-making. Finally, this article addresses three concerns that need to be further explored for the accommodation of moral remainders in the theory and practice of legal decision-making to be successful.