Academic

Segev on Values & Interests

By Lawrence Solum

Re'em Segev (Hebrew University of Jerusalem - Faculty of Law) has posted Weighing Values and Balancing Interests (Jerusalem: Israel Democracy Institute, 2008) on SSRN.  Here is the abstract:

One of the central normative questions regards a decision between conflicting moral values. A decision of this nature is often required in disciplines such as philosophy, economics and law. According to common terminology, a decision between conflicting values reflects a balance of values, considerations or interests. Several types of questions arise in this context. One category includes substantive questions: which values exist, which considerations should be derived from these values, what is the degree of importance of these considerations, and which principles should be established for deciding between conflicting considerations? Another category includes institutional questions: which individual or body should decide normative questions, and should the normative nature of the decision be manifest or concealed? This paper is an abstract of a book that considers general aspects concerning these questions.

And from the text:

The?rst approach, which states that the lawmaker or the interpreter of the law should rely on his or her normative judgment to decide on the correct interpretation, requires a normative analysis, including a decision between con?icting considerations. In contrast, the other approaches do not require a normative, but rather a descriptive (factual, empirical) analysis: an examination of the prevalent morality in the relevant society, or of the prevailing law in the relevant legal system or in other legal systems. Naturally, the non-normative alternatives ? regarding both the determination of new laws according to prevailing morality or law and the interpretation of existing laws according to the wording of the text or the goal of the author ? require a preliminary normative decision; however, this is not a decision made by the lawmaker or interpreter, but rather by another person or persons, such as the majority of the public (with regard to a determination of the law according to prevailing morality) or the author (with regard to an interpretation in light of the author?s position). Therefore, the implication of the non-normative approaches is a decision (with normative signi?cance, of course) by the lawmaker or interpreter to transfer the normative decision regarding the content of the law to another person or persons. The normative considerations for and against the various alternatives do not lead to a sweeping conclusion to always adopt a particular alternative, but rather to the conclusion that sometimes one alternative should be adopted while at other times a different alternative should be adopted. Therefore, these (normative) considerations are not to be employed just once, but must be reexamined in each context.

Recommended--the book for which this is the preface promises to be very interesting.

The paragraph from text rests on the assumption that values either reflect the private first order judgments of the legal interpreter or that they are derived from some external source.  There are, however, a variety of alternative conceptualizations of this relationship.  One is found in Hegel, but the most promising line (in my opinion) is to be found in Aretaic normative theory, and in particular, in NeoAristotelian work on the virtue of justice.  Humans with the virtue of justice as lawfulness are disposed to internalize the nomoi--the social norms governing human interactions that are widely shared and deeply held in their communities.  But practically wise humans (the phronomoi) will only internalize norms that bear the right relationship to the flourishing of humans and their communities.  On this picture, the assumption (that the relevant norms are either those of the actor or external) does not hold.

Full post as published by Legal Theory Blog on January 13, 2009 (boomark / email).