Taking Disagreement Seriously: Towards understanding the significance of disagreement in judicial decision making

This thesis concerns the understanding of disagreement, exploring what implications its study might possess for law. Specifically, I focus my attention on the recent Epistemology of Disagreement literature (ED), which seeks to identify what one should do when one finds oneself in disagreement with an 'epistemic peer'. In applying ED, I use as a test site the UKSC - an elite forum of peers from which rulings are of great social importance, thereby providing a critical test of the insights offered by ED's approach. My findings lie across the disciplines. In philosophy, I suggest that ED fails a test of their making; that the theory can extend from the idealised instances of disagreement typical of the literature, to more complex 'real-world' disagreements such as those in law. Within my analysis two features warrant special mention. First, I identify deficits in the construction of peers in ED. Through application to UKSC Justices I argue that the definition employed is simply unattainable, failing to extend even to the narrow forum of the UKSC. Second, deficits are identified in the construction of 'disagreement' - I argue that unnecessary restrictions unduly limit our understanding of genuine disagreement. The identified deficits enable us to see that ED's limited focus on circumscribed and artificial instances of disagreement offers little about disagreement itself, and little about disagreement in real-world cases.

In law, I conclude that ED fails to apply to the disagreements subject to analysis. I further argue that the deficits encountered are not in fact limited to ED, but rather betray a more foundational mistreatment of the notion of disagreement that is evidenced in wider jurisprudential literature. In this respect, I identify a gap that is faced in both philosophy and jurisprudence in the treatment of disagreement. Finally, in spotlighting deficits in the present literature, I begin to map out important clarifications and insights that can be brought together to fill the gap, so that we might begin to take disagreement seriously.