January 7, 2014

Recovering the "Tragic Dimension" In the Legal Order

Pedro Caro de Sousa, University of Oxford, has published Law as Tragedy. Here is the abstract.

Natural law and tragedy have been long intertwined, but the tragic dimension has been lost in the way contemporary legal orders tend to equate natural law with human rights. The "institutionalisation" of these rights as part of political and administrative culture, the adoption of procedural paradigms such as those of "the priority of rights over the good", and the idea that to each legal question there is a single right answer have led to a judicialisation of the political sphere and to the development of a technocratic culture that leaves no room for the articulation or realisation of competing conceptions of good. The present paper seeks to bring to the forefront the tragedy inherent in human rights’ adjudication – i.e., the fact that when deciding between two different values or goods expressed in human rights, an adjudicator may have to fully sacrifice one of them, or both of them partially.
In particular, this paper is concerned with the implications of incommensurability for rights adjudication, which tends to be overlooked in much of contemporary constitutional theorising. To understand these implications, an overview of the development of the present rights’ culture and the history of the intellectual underpinnings of the "right-answer" postulate will be pursued. This paper will then proceed to identify the limitations of this position and intellectual tradition. Lastly, an attempt will be made to understand, and even justify, rights’ adjudication in contemporary pluralistic legal orders.
Download the paper from SSRN at the link. 

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