Where does the notion of legal dilemma come from?
In legal theory, the notion of normative conflict has long been discussed and analysed. Yet, in recent years, a more specific category within the latter has attracted growing attention: the notion of legal dilemmas, and especially constitutional dilemmas (i.e., legal dilemmas involving constitutional norms).
Legal dilemmas are typically understood in three main ways. One view sees them as conflicts in which practical reasoning cannot rationally determine which alternative should prevail. Another defines them as conflicts where any choice results in loss, sacrifice or wrongdoing. A third, endorsed by Lorenzo Zucca in the context of constitutional law, combines the former perspectives: constitutional dilemmas entail choosing between two goods (protected by fundamental rights), even though there is no rational way to decide and any decision leads to a loss or wrongdoing.[i]
The origins of this discussion trace back to moral philosophy. Philosophers have debated not only whether moral dilemmas genuinely exist, but also whether they should be equated with the tragic inevitability of moral failure, or with the impossibility of reaching a rational decision.[ii]
The concept of dilemma in the legal realm
The debate over moral dilemmas has thus been imported into legal theory. The first approach, which identifies legal dilemmas with inevitable wrongdoing, seems to be problematic in law. It only fits within some non-positivist frameworks, as it distinguishes between normative legal conflicts and legal dilemmas based on a moral criterion (i.e., the failure to comply with a moral parameter). From a positivist perspective, where the existence of law depends on social rather than moral facts, the idea that an agent “inevitably does something wrong” may be irrelevant.
The alternative criterion, sacrifice, is equally tricky. Sacrifice is a familiar feature of almost every normative conflict, since choosing one norm over the other implies the satisfaction of the former and the sacrifice of the latter. In balancing fundamental rights, for example, upholding freedom of expression often entails curtailing privacy, and vice versa. But if every conflict entails some sacrifice, then sacrifice cannot serve as the defining feature of legal dilemmas.
For this reason, both inevitable wrongdoing and sacrifice are fragile distinguishing criteria, leaving open the need for a sharper definition of legal dilemmas in law.
Dilemmas and the absence of a rational decision
The more promising way of defining legal dilemmas focuses on the absence of a rational decision. Borrowing from moral philosophy, this approach sees dilemmas as conflicts where the legal system lacks sufficient resources (e.g., criteria, scales, procedures) to choose between different prima facie alternatives of action. That may happen in two scenarios: equivalence between alternatives and incomparability between alternatives.[iii]
Equivalence arises only in symmetrical cases, such as when two individuals hold exactly the same right and circumstances provide no legally relevant distinguishing factor – for instance, when a doctor must choose between two patients to save and they share identical chances of survival and identical clinical records). Incomparability, by contrast, concerns cases where no covering value can be identified to compare the alternatives. This phenomenon is also unlikely: the rejection of the strict “trichotomy thesis” (which holds that options can only be better, worse, or equal) allows legal actors to view alternatives as “on a par” rather than incomparable, which makes rational balancing possible.[iv]
On this basis, legal dilemmas seem rare. Most normative legal conflicts can be resolved either through norms of conflict (lex superior, lex posterior, lex specialis) or through the balancing method that, while subjective and evaluative, still yield rational and universalizable outcomes. Even constitutional conflicts, often thought to be uniquely prone to dilemmas, are not fundamentally different in structure from infra-constitutional conflicts.
Considering the above, the utility of the concepts of legal and constitutional dilemmas in legal discourse can at least be questioned. Not only because dilemmas are empirically rare in the legal realm, but also because the underlying similarity between moral and legal dilemmas may be misleading.
To read more about this, check out the full paper: Azevedo, S., The role of dilemmas in law, in Pravni Zapisi, XV, no. 2. [LINK]
SUGGESTED CITATION: Azevedo, Sara, “The Role of Dilemmas in Law”, FOLBlog, 2025/10/08, https://fol.ius.bg.ac.rs/2025/10/08/the-role-of-dilemmas-in-law/
NOTES
[i] See Martínez Zorrilla, D., 2011, Constitutional Dilemmas and Balancing, Ratio Juris, Vol. 24, No. 3, pp. 349ff.; Alvarez, S., 2011, Constitutional Conflicts, Moral Dilemmas and Legal solutions, Ratio Juris, Vol. 24, No. 1, pp. 59ff; Zucca, L., Conflicts of Fundamental Rights as Constitutional Dilemmas in: Brems, E., (ed.), 2008, Conflicts Between Fundamental Rights, Antwerp, Intersentia, pp. 20ff; Lariguet, G., 2008, Dilemas morales y Derecho. Una crítica a David Martínez, Discusiones, No. 8, pp. 55–105.
[ii] See Lemmon, E. J., Moral Dilemmas, 1962, The Philosophical Review, Vol. 71, No. 2, pp. 139ff.; MacIntyre, A., 1990, Moral Dilemmas, Philosophy and Phenomenological Research, Vol. 50, pp. 367ff; Mason, H. E., (ed.), 1996, Moral Dilemmas and Moral Theory, New York, Oxford University Press; Foot, P., 2002. Moral Dilemmas and Other Topics in Moral Philosophy, Oxford, Oxford University Press; Cholbi, M., 2016, The denial of moral dilemmas as a regulative ideal, Canadian Journal of Philosophy, Vol. 46. No. 2, pp. 268–289.
[iii] See Martínez Zorrilla, D., 2008, Dilemas morales y Derecho, Discusiones, No. 8, pp. 17–54.
[iv] On incomparability and the trichotomy thesis, see Chang, R., Introduction, in: Chang, R., (ed.), 1997, Incommensurability, Incomparability and Practical Reason, Cambridge, Harvard University Press, pp. 1ff.; Chang, R., Value Incomparability and Incommensurability, in: Hirose, I., Olson, J., (eds.), 2015, The Oxford Handbook of Value Theory, Oxford, Oxford University Press, pp. 205ff. (in philosophy) and Silva, V. A. da, 2011, Comparing the Incommensurable: Constitutional Principles, Balancing and Rational Decision, Oxford Journal of Legal Studies, Vol. 31, No. 2, pp. 273–301 (in law).