Avant (Apr 2018)
Ex aequo et bono versus Hard Cases in the Light of Modern Metaethics
Abstract
In the present paper, I argue against the claim that ex aequo and bono adjudication cannot be epistemically objective. I start with a survey of legal rules allowing the parties to resort to ex aequo et bono adjudication. Next, I argue that decisions taken on ex aequo et bono basis are not subjective for three main reasons. First, they are analogous to decision making in hard cases. Second, theories of practical reasoning and hybrid expressivism provide a precise theoretical account of the mechanisms at stake. Third, the context of adjudication provides substantial constraints on judicial tasks.
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