About

Hard cases of evaluation in law are rife and it matters how we deal with them. My research project aims to offer a novel account of rational justification in cases where rational choice is problematic. My project is thus divided into two parts. In the first part I shall introduce Ruth Chang's philosophical ideas concerning rational choice and applied them to the domain of legal reasoning. I shall, hence, propose that the structure of legal decision-making is 'comparativist', and that the hardest cases of evaluation are hard because making comparisons is, sometimes, very hard. I will further argue that the hardest cases of evaluations are those in which alternatives are on a par, and that choice in such situations can only be made by exercising robust normative powers. An account of rational justification that accounts satisfactorily for the nature of the hardest cases is, thus, one that is 'comparativist' and 'hybrid-voluntarist'.

The second part builds on the 'comparativist' theory of rational justification, and then tries to offer an answer to the normative question: how can will be best exercised in hard choice situations? In the second part I will argue that will can be exercised in different degrees of virtue, and that thus character and attitude in the way decision-makers operate is essential for the legal system's legitimacy. I shall study, compare, and evaluate different accounts of virtue theory and will try to list a set of virtues that decision-makers acting solving hard legal cases are to display.