Judges as Moral Reasoners

Posted: 17 Jan 2009

See all articles by Jeremy Waldron

Jeremy Waldron

New York University School of Law

Date Written: January 2009

Abstract

Debates about judicial authority―including debates about the desirability of judicial review of legislation-sometimes turn on the question of whether judges have superior skills when it comes to addressing what are, essentially, moral issues about rights. This paper considers the possibility that the answer may be “no,” not because judges are inept morally, but because the institutional setting in which they act and the role that they adopt both require them to address questions about rights in a particular legalistic way-indeed, in a way that, sometimes, makes it harder rather than easier for essential moral questions to be identified and addressed. Of course, what we want is for moral issues to be addressed, not as one would make a personal moral decision, but in the name of the whole society. Perhaps the judicial mode of addressing them satisfies that description, but there are other ways of satisfying it too-including legislative approaches, which proceed by identifying all the issues and all the opinions that might be relevant to a decision, rather than artificially limiting them in the way that courts do.

Suggested Citation

Waldron, Jeremy, Judges as Moral Reasoners (January 2009). International Journal of Constitutional Law, Vol. 7, Issue 1, pp. 2-24, 2009. Available at SSRN: https://ssrn.com/abstract=1328738 or http://dx.doi.org/10.1093/icon/mon035

Jeremy Waldron (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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