THE SERIOUS QUESTION: UNCERTAINTY

Compare.

First, from Larry Solum's paper, "The Aretaic Turn in Constitutional Theory," available here.

In the end, agreement and disagreement about what rules mean and how they are applied are rooted in practical judgments. Even with respect to some easy cases and more frequently with respect to complex cases, articulated reasons will not suffice to explain why, in cases of bottom-line disagreement about the application of a rule to the facts, one judgment is legally correct and competing judgments are not.

Indeed, a virtue-centered account allows us to appreciate the fact that explanations or justifications of legal decisions play more than one role. In some cases, when a judge explains a decision, the intention is to lay bare the premises and reasoning that moved the judge from accepted premises about the law and the facts to some conclusion about what result is legally correct. There are other cases, however, where explanations play a different role. When the decision of a case is based on legal vision or situation sense—that is, when the decision is based on the virtue of judicial wisdom of phronesis—then the point of an explanation is to enable others to come to see the relevant features of the case. Such explanations do not recreate a decision procedure; rather, they are aimed at enabling others to acquire practical wisdom. (36)

Second, from Lief Carter and Thomas Burke, Reason in Law (6th ed.):

[There is] a basic disjunction between the way the world works and what we seek in legal opinions. In the world there are no right answers to legal questions. The world is filled with disputed facts, ambiguous words and old precedents that must be applied to new circumstances. Moreover, the world is tragic because it often pulls us in two inconsistent but equally good directions at once – toward on the one hand recognizing the freedom of the Boy Scouts to act as they wish, but on the other hand toward the right of gays and lesbians to be treated with dignity and respect. We know this about the world, yet we require judges to smooth out the edges, to make the world somehow fit. The job of judges. . .is to make the uncertain seem certain. (155)