Parity and Law

Ruth Chang is an ideal interlocutor to address these profound concerns. Throughout her writings, she has developed a forceful critique of orthodox dogmas of normativity. In the physical world, comparative relations are trichotomous: Adam is either taller than, less tall than, or equally as tall as Sally. Comparisons within the normative realm, Chang argues, do not adhere to this structure. When two values compete, there may be qualitative differences in normativity that give rise to a fourth basic way in which they relate. The legal value of security may not be better, worse or equal to the value of privacy; instead, both values may just be qualitatively diverse. They may be on a par. In such situations, Chang argues, our externally given reasons run out, allowing us to will reasons into existence through our commitments. By putting our agency behind a normative consideration, we may be able to rationally resolve hard cases.

But is that an accurate account of what we, as rational agents, do when confronted with hard choices? Is parity really metaphysically prior, or can it be reduced to other normative phenomena? And can Chang’s insights be neatly translated into legal reasoning – particularly, into the doctrine of proportionality? Does widespread parity explain what troubles us about legal balancing operations? Can (and should) judges put their judicial agency behind a legal consideration and thereby rationally resolve hard cases? Or do constellations of parity call for judicial restraint because such commitments should be left to democratically elected legislatures?

We plan to discuss these questions in a one-day academic workshop held in a small and sociable setting at the Max Planck Institute for the Study of Crime, Security and Law in Freiburg. Each talk will be followed by a commentary. Ample time will be reserved for open, unstructured discussion.

Our speakers

• Ruth Chang, University of Oxford
• Wlodek Rabinowicz, Lund University
• Wolfgang Spohn, University of Konstanz
• Gabriele Britz, University of Frankfurt and former judge of the Federal Constitutional Court
• Ralf Poscher, Max Planck Institute Freiburg
• Niels Petersen, University of Münster

Our commentators

• Laurence O’Hara, Max Planck Institute Bonn
• Thomas Bullemore, University of Oxford
• Svenja Behrendt, University of Mannheim
• Piero Ríos Carrillo, University of Oxford
• Martha Basazienw Kassa, Max Planck Institute Freiburg
• Christian Thönnes, Max Planck Institute Freiburg

Registration

External guests – Please register your participation with Christian Thönnes: c.thoennes@csl.mpg.de.