Courts as the Nation’s Conscience: Empirically Testing the Intuitions Behind Ethicalization

Abstract

A prevalent intuition holds that law without values is sterile and formalist. On this view, including ethical terms in law allows a judge to engage directly with the “real” moral issues of the situations before her, instead of being preoccupied with abstractions. In grander versions, the ethicalization of law empowers judges to act as the state’s conscience, as the final defender of great national and human values. This idea is appealing. But its persuasiveness rests on a causal claim that judges, armed with ethical terms, can and will actually do this work. We seek to test that causal claim: does the evidence confirm that including ethical terms in law or interpretative rules will produce more moral outcomes and safeguard national values from political threats? The intuition is a broad, general idea, and we engage with it at the same general level. We examine two areas of work richly relevant to the practical effect of the ethicalization of law and conclude that the evidence casts doubt on the causal claim in the longer term: it exaggerates judge’s potential in relation to politics and neglects the risks inherent in the flexibility of ethical terms.