Frederic R. Kellogg, Edinburgh (UK)

The Abuse of Principle. Analytical Jurisprudence and the Doubtful Case

Contemporary analytical jurisprudence holds that the “doubtful” or “hard” case, not resolved by any clear legal authority, is either legally indeterminate or can be resolved only by judicial recourse to principles. There is an aspect of the “doubtful case” that militates against recourse to principle. When viewed as representative of an early stage of a continuing class of disputes, then (especially in controversial cases of broad import) judicial recourse to principles may lead to an improvident choice of reasons, and violates fundamental democratic values. This argues for early judicial minimalism or particularism, where judges resolve decisions narrowly, for two reasons: 1) principled resolution of all doubtful cases is inconsistent with the exploration and classification phase of judicial inquiry, and 2) public debate among scholars and citizens should be permitted to play a role in the development of practical reasoning and the adjustment of practices surrounding broad controversies.

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