The Judge as Moral Arbiter? The Case of Abortion
CONSTITUTIONAL TOPOGRAPHY: VALUES AND CONSTITUTIONS, András Sajó & Renáta Uitz, eds., Boom Eleven International, 2010
20 Pages Posted: 8 Dec 2010
Date Written: January 7, 2010
The purpose of this essay is to determine whether judges can avoid being moral arbiters; whether they ought to be moral arbiters; or whether inevitable questions of morality tied to the grant and protection of constitutional) rights ought to be entrusted to others, such as the constituent power, legislators, etc. The paper will test these issues in relation to the existing constitutional jurisprudence relating to abortion gauged from a comparative perspective. Part I will provide a critical assessment of the theoretical debate; Part II, an examination of insights stemming from relevant constitutional jurisprudences on abortion, and, Part III a theory about the optimal apportionment of responsibility for determining the moral issues that arise in the context of the recognition, interpretation and implementation of constitutionalized fundamental rights.
Keywords: Rights, Abortion, Life, Morality, Dignity, Proportionality, Judges
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