Plurality in Legal Reasoning - The Place of Value Pluralism in Theories of Law and Adjudication

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Copyright: Gooding, Bradley
This thesis is a philosophical submission aiming towards the cultivation of a pluralistic jurisprudence. It is animated by the felt need for an equitable accommodation of social disagreement in legal reasoning. It attends this by focussing specifically on developing an account of value pluralism which can be judicially understood, not as a comprehensive ontology, but as a pragmatic structuring of normativity with its own distinctive ethos and conception of rationality. This distinctiveness necessitates a careful explanation, defence, and demonstration of viability within the literature of jurisprudence, as well as, critically, the construction of terms on which a normative conviction in pluralism could successfully be judicially and legally vindicated. To this end, the thesis is divided into two Parts. Part I works towards a normative account of pluralism, looking to capture what is politically/legally appreciable about the concept, as illustrated through the value pluralism of Isaiah Berlin (Chapter 1). But, recognizing critiques of that philosophy –specifically, the critique by Ronald Dworkin – Part I will also be concerned to refurbish the Berlinian account of plurality for greater legal appreciation by drawing on support from pragmatic epistemology, Elizabeth Anderson's expressivist value theory, and recent scholarship in 'satisficing' decision theory. These conjoin in the construction of a defensible instantiation of pluralism (Chapter 2). The inquiry of Part II, then, seeks grounds of both solidarity and criticality for Part I's pluralism within contemporary analytical jurisprudence. In particular, Part II looks to the motivational complexes and valuative patterns underlying Joseph Raz's exclusive positivism (Chapter 3), Ronald Dworkin's interpretivism (Chapter 4), and Richard Posner's legal pragmatism (Chapter 5). Part II's inquiry seeks jurisprudential tools suitable to mount a rational resistance against the monistic orthodoxy of legal thought, and in doing so will draw upon its three focal theorists in ways which reorient the critical appreciation of each. More than this, however, the sum of Parts I & II will point also to a critical transformation for pluralism, as an aspirational project in legal theory, if it is to be effectively – that is, pluralistically – mobilized in the conceptualization of law, legal theory, and the role of the judge.
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Gooding, Bradley
de Leeuw, Marc
Glass, Arthur
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PhD Doctorate
UNSW Faculty
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