What Should Be Transparent in Law? A Pragmatist Strategy to Justify Legal Decisions

Abstract

This is a paper I presented at the IVR in Lund in 2003 in a special workshop entitled “Transparent Autonomy of Law: Linking Legal and Moral Validity.” It is a comment on the first book by Henrik Palmer Olsen and Stuart Toddington, Law in its Own Right. The reason to post it now is that they respond to this criticism in their second book Architectures of Justice. Legal theory and the Idea of Institutional Design (Ashgate 2007).In their book Law in its Own Right, Henrik Palmer Olsen and Stuart Toddington defend the idea of the transparent autonomy of law. The important claim they make is that the substantive moral reasons for law as an autonomous system can never be made completely invisible, because law’s authority relies on its promise to solve or prevent moral conflicts. In my view, this connection between legal validity and moral reasons is well argued, but I disagree with the way they further develop their view on the moral background of law. In particular, there are two points of disagreement I want to explore further.First, I disagree with the need to use an objectivist, rationalistic, moral epistemology as a basis to weigh the reasons for a legal decision. From the need for a coherent justification of a legal decision, it is not a necessary step to appeal to sound foundational principles. If we focus on the justification of a particular legal decision, it is enough to appeal to reasons for a solution which are acceptable within the legal practice. This can be defended on the basis of a pragmatist epistemology.Second, I disagree with the claim that it is possible to arrive at a hierarchy or commensurability of values. In my view, it is possible to distinguish the a priori incommensurability of values from the need for a reasoned choice between values in a particular situation. This entails that complete abstract justification of a system of values is impossible but practical justification of concrete problem-solving is seen as more important.