Are Legislatures Good at Morality? Or Better at it than the Courts?

Abstract

This essay criticizes Jeremy Waldron's assumption that debate about judicial review of statutes requires us to suppose, when it comes to moral reasoning about the law, that either judges or legislatures are good at it and, based on that supposition, to choose which institution should be assigned the task. Waldron does not hold fast to his own assumption-his claim turns out to be that legislatures should have final authority in moral matters, since they are better at moral reasoning than judges. He thus abandons a central tenet of political positivism-namely, its hostility to judges having any role at all in moral reasoning about the law. Thus, Waldron is engaged, not in an argument against judges playing such a role but, rather, in a debate about how to best to design legal institutions, given that judges will, in fact, have an important role in that moral deliberation.