Disorder and Discontinuity in Law and Morality
-
Leo Katz
Abstract
For every legal concept X, there are clear instances exemplifying an X and clear instances exemplifying a non-X. The cases that come before courts are those that seem to lie in between, being neither clearly an X nor clearly a non-X. It is tempting to think that, being in-between, they should receive an in-between treatment, that is, to the extent that they are an X they should be treated as an X. If they are sixty percent toward being an X, they should get sixty percent of the treatment due an X. But this presupposes that in-between cases can be rank-ordered at least roughly according to the degree of their X-ness. This Article explains why that generally cannot be done and why courts therefore go for an either/or approach: something gets treated either as an X or as a non-X. The explanation is rooted in the kind of phenomena explored in the theory of social choice and multi-criterial decision-making.
© 2021 by Theoretical Inquiries in Law
Articles in the same Issue
- Frontmatter
- Introduction
- Sizing Up Categories
- Disorder and Discontinuity in Law and Morality
- Continuity in Morality and Law
- Half the Guilt
- Line Drawing in the Dark
- Discontinuities in Criminal Law
- All-or-Nothing, or Something – Proportional Liability in Private Law
- Proof Discontinuities and Civil Settlements
- Probabilistic Disclosures for Corporate and other Law
- The Charitable Continuum
- Changing Places, Changing Taxes: Exploiting Tax Discontinuities
Articles in the same Issue
- Frontmatter
- Introduction
- Sizing Up Categories
- Disorder and Discontinuity in Law and Morality
- Continuity in Morality and Law
- Half the Guilt
- Line Drawing in the Dark
- Discontinuities in Criminal Law
- All-or-Nothing, or Something – Proportional Liability in Private Law
- Proof Discontinuities and Civil Settlements
- Probabilistic Disclosures for Corporate and other Law
- The Charitable Continuum
- Changing Places, Changing Taxes: Exploiting Tax Discontinuities
