The Use of Meta-Ethics in Adjudication

Posted: 29 Feb 2008

See all articles by Dale Smith

Dale Smith

University of Melbourne - Law School

Abstract

This article responds to Jeremy Waldron's claim that the truth or falsity of moral objectivism makes no difference to the arbitrariness, or otherwise, of adjudication (the 'no-difference thesis'). I start by outlining the way in which I believe objectivism and its opponents should be distinguished, before setting out Waldron's arguments in favour of the no-difference thesis. I then consider a number of ambiguities in that thesis, before criticizing several attempts by Michael Moore to respond to Waldron's arguments. Having cleared the way for a new consideration of this issue, I argue that-depending on which interpretation of them we accept-Waldron's arguments: (i) misrepresent the nature of the debate between objectivists and anti-objectivists; (ii) beg the question by asserting that objectivism is wrong rather than irrelevant; or (iii) rely upon an indefensible account of political justification. Finally, I offer an example of how the truth or falsity of objectivism can have implications for adjudication, by suggesting two ways in which it may affect the legitimacy of judicial review.

Suggested Citation

Smith, Dale, The Use of Meta-Ethics in Adjudication. Oxford Journal of Legal Studies, Vol. 23, No. 1, pp. 25-47, 2003, Available at SSRN: https://ssrn.com/abstract=815045

Dale Smith (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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