Settlement

The need for legal reasoning comes about when members of a community confer authority on certain individuals to settle moral controversies. The controversies that concern us arise in a community whose members agree on moral values at a fairly high level of generality and accept these values as guides for their own action. Individuals who are fundamentally like-minded and well intentioned may nevertheless differ about the specific implications of moral values, or they may be uncertain about the best ways to realize shared values. Recognizing that controversies of this kind are inevitable, the community can reduce the moral costs of disagreement and uncertainty by delegating a power of settlement to a chosen authority.

Settlement, as we use the term, is not simply choice of a solution. It entails reasoning, by which we mean conscious, language-based deliberation about reasons for the choice ultimately made. The members of our imagined community have not agreed to flip a coin; they have selected a human authority to translate the values that serve as reasons for action within the community into solutions to practical problems. Given the flaws of human reasoning, the solutions the authority endorses may not be justified in the sense that they are morally correct. But, because the authority's task is to settle what the community's values require in practice, its conclusions must be susceptible to justificatory argument. They cannot refer to intuition alone.