Source: pp 167-168, Thinking Like a Lawyer: An Introduction to Legal Reasoning (2010, 2 ed) by Kenneth J. Vandevelde.
Can someone please explain and demystify (make more intuitive) the paradox per 4? How can
OPPOSED policies (separated by the green linese) still consist and harmonise with each other?
[1.] The relationship among the various sets of
opposed policiesdiscussed in the first section of the chapter may be diagrammed as follows: [Larger version here].
[2.] Judicial opinions often do not even seek to be consistent in theory at high levels of generality. For example, instrumentalism and utilitarianism are often associated with each other, as are formalism and positivism as well as natural law and individual rights, despite the fact that each of these pairings draws from opposite columns in the diagram.
[3.] Inconsistencies in theory at high levels of generality are of little, if any, concern to a court. Indeed, to go one step further, it is virtually inevitable that a judicial decision will be inconsistent in theory at some level of generality. Or to restate the assertion, judicial decisions cannot make every policy choice in favor of the same pole of the dualism of the universal and the particular.
[4.] The inability to rest consistently on the same pole of the dualism of the universal and the particular reflects a paradox underlying Enlightenment liberalism. The paradox is that either pole of these three dualisms, if pursued to its logical conclusion, is ultimately destructive of itself.