Common Law, Equity, and American Public Administration

Green, Richard T.

doi:10.1177/0275074002032003001

Cited by 7 publications

(6 citation statements)

References 33 publications

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“…This is because legal reasoning, most especially as it is practiced within Anglo-American law, is based on a process of adversary argument and analogical reasoning that makes more likely the consideration of conflicting values or conceptions of the good. In recent years, a number of scholars have examined the strengths and limitations of legal reasoning as a guide for public administration decision making (see, e.g., Green, 2002;Morgan, 1990;Spicer & Terry, 1996;White, 1990). This article examines the particular relevance of legal reasoning to public administration when dealing with the type of conflicts among rival values or conceptions of the good that, according to value pluralists, are an integral part of our moral experience.…”

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confidence: 99%

Value Conflict and Legal Reasoning in Public Administration

Spicer

2009

Administrative Theory & Praxis

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This article explores the idea of value pluralism, the problems it poses for public administration, and how an examination of legal reasoning, as a form of practical reasoning, might help public administrators deal with these problems. It is argued that legal reasoning can be helpful because it is rooted in a process of adversary argument and analogical reasoning that promotes the consideration of conflicting values or conceptions of the good.Value pluralism entails the idea that many of the ends or values that we seek can come into conflict with one another and, moreover, that, in such cases, there may be no overriding value or common ethical measuring rod that is available to us to arbitrate such conflicts. 1 As such, value pluralism involves a recognition that "human goals are many, not all of them commensurable, and in perpetual rivalry with one another" (Berlin, 1969, p. 171): an acceptance that we face "conflicting moral claims which are not to be settled by appeal to a criterion that is always overriding and final" (Hampshire, 1983, p. 24). With some exceptions (Nieuwenberg, 2004;Wagenaar, 1999), public administration writers have generally not devoted much attention to the idea of value pluralism or its implications for administrative practice. This article explores the idea of value pluralism, the problems it poses for public administration, and how public administration might better deal with them. I argue here that the model of instrumental or technical rationalism, offered by many in our field, is not helpful to administrators in making choices among conflicting values and, in fact, may lead them to pay insufficient attention to the conflicts among values that are involved in their own decisions and actions. Furthermore, I examine how a more self-conscious cultivation of the process of practical reasoning, one derived from our social practices for resolving moral conflict, might be helpful to public administrators in both thinking about and dealing more effectively with conflicting ends or values. Moreover, I argue here that public administrators can engage more effectively in this type of

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confidence: 99%

Value Conflict and Legal Reasoning in Public Administration

Spicer

2009

Administrative Theory & Praxis

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“…In addressing this problem, one means to articulate the content of regime values and principles rests on judicial reasoning and rulings (P.J. Cooper, 2007;Green, 2002;Lee, 2004;Morgan, Kirwan, Rohr, Rosenbloom, & Schaefer, 2010;Rosenbloom, 2000;Spicer, 2010). These rulings provide guidance on how administrators are to judge and translate the normative aims into practice.…”

Section: Judgmentmentioning

confidence: 99%

The Balance Wheel Reconsidered: Addressing Constitutional Principle Disputes in Practice

Newswander

2015

Administrative Theory & Praxis

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In handling contingencies that do not yield to categorical answers, Aristotle argues, deliberation grounded in a general purpose becomes necessary so that reason can be exercised in a way that effectively and correctly resolves particular problems. This article explores how Aristotelian prudence adjusted to constitutional conditions can serve as a normative guide not only in resolving ethical dilemmas but in molding administrative judgment. This modified consideration of Aristotelian thinking requires administrators to rely on regime values and principles as aims in making choices that are often in direct conflict with those of other parties. The deliberation of what these values and principles mean in practice requires that administrators have a sense of both the general and the particular. The ability to tap into these considerations defines a balanced administrator who is able to prudently make quality choices.

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“…One method to ensure that questionable decisions are constrained is by adopting the "skills and temperament of a judge" (Morgan, Kirwan, Rohr, Rosenbloom, & Schaefer, 2010, p. 626). This is partly due to the fact that judges consider contextual realties that encompass both means and ends (Green, 2002;Lee, 2004;Morgan et al, 2010;Rohr, 1986;Rosenbloom, O'Leary, & Chanin, 2010).…”

Section: Containing Metismentioning

confidence: 99%

Metis

Newswander

2013

The American Review of Public Administration

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When seeking to accomplish public ends in a prudent manner, administrators are occasionally put in precarious situations that require a degree of metis. Metis is a distinct form of knowledge characterized by a mixture of wile and wisdom and is valuable because it can offer viable alternatives for solving complex problems in contingent situations. Individualized problems often require administrators to forego routinized recommendations and pursue a path to prudence through shrewd thinking and action. However, if metis is not properly contained, it runs the risk of sinking under the weight of unscrupulous motivation and of negatively affecting the legitimacy of administrative action. What is important is that a crafty ethos is bound within a proper sphere. This is why a bounded metis informed by a modified version of intermediate scrutiny may provide a meaningful guide that legitimizes the ability of administrators to handle ambiguous situations in a prudent manner.

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Common Law, Equity, and American Public Administration

Cited by 7 publications

References 33 publications

Value Conflict and Legal Reasoning in Public Administration

Value Conflict and Legal Reasoning in Public Administration

The Balance Wheel Reconsidered: Addressing Constitutional Principle Disputes in Practice

Metis

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