Disorder and Discontinuity in Law and Morality

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.