Judges as moral reasoners

International Journal of Constitutional Law

Volumn 7, Issue 1, 2009, Pages 2-24

  Waldron, Jeremy ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 58849144703     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mon035     Document Type: Conference Paper

References (72)

1. Or we can put the question more modestly: Even if it is not always superior to legislative reasoning, is the quality of moral reasoning by judges a good reason for assigning them a veto over legislation that they consider encroaches on individual rights - a veto which is separate from those involved in various stages of the legislative process? I am grateful to Mitch Berman for suggesting this way of putting the question.
2. As Leslie Green has pointed out to me, this is not the only reason adduced in favor of judicial review of legislation but it is a prominent one. Equally, it is worth noting that, to the extent that this line of argument is attacked in the present paper, that attack does not exhaust the case against judicial review. The familiar argument from democratic legitimacy continues to apply, even if it can be shown that judges are better than legislators at the sort of moral decision making called for in cases of rights. See Jeremy Waldron, The Core of the Case against Judicial Review, 115 YALE L.J. 1346, 1386-1395 (2006).
3. RONALD DWORKIN, A MATTER OF PRINCIPLE 70 (Harvard Univ. Press 1985).
4. Id. at 70-71.
5. For a brief discussion of this claim, see JEREMY WALDRON, LAW AND DISAGREEMENT 289-291 (Oxford Univ. Press 1999).
6. DWORKIN, supra note 3, at 32.
7. NICCOLO MACHIAVELLI, DISCOURSES ON LIVY 16 (Univ. Chicago Press 1996) (bk. I, ch. iv) ("To me it appears that those who damn the tumults between the nobles and the plebs blame those things that were the first cause of keeping Rome free, and that they consider the noises and the cries that would arise in such tumults more than the good effects that they engendered").
8. DWORKIN, supra note 3, at 25.
9. Joseph Raz, Disagreement in Politics, 43 AM. J. JURIS. 25, 46 (1998).
10. On the latter issues, Raz has the good grace to observe that this is not always so: "Sometimes ... there are reasons for thinking that those whose interests are not going to be affected by a decision are unlikely to try honestly to find out what is just in the circumstances. Sometimes one may be unable to appreciate the plight of classes of people unless one belongs to the same class oneself, and therefore rather than entrusting the decision to those not affected by it, it should be given to those who are so affected." Id. at 46.
11. There is a considerable literature on ideals of moral reasoning. See, e.g., JOHN RAWLS, Outline of a Decision-Procedure for Ethics (1951), in 1 JOHN RAWLS, COLLECTED PAPERS (Harvard Univ. Press 1999)
12. KURT BAIER, THE MORAL POINT OF VIEW: A RATIONAL BASIS FOR ETHICS (Random House 1965)
13. R.M. HARE, MORAL THINKING: ITS LEVELS, METHOD, AND POINT (Oxford Univ. Press 1981)
14. and T.M. SCANLON, WHAT WE OWE TO EACH OTHER (Harvard Univ. Press 1998).
15. JEREMY WALDRON, THE DIGNITY OF LEGISLATION 34-35 (Cambridge Univ. Press 1999).
16. WALDRON, supra note 4, at 1376-1386.
17. Jeremy Waldron, Moral Truth and Judicial Review, 43 AM. J. JURIS. 75, 83-84 (1998), responding to Michael Moore, Law as a Functional Kind, in NATURAL LAW THEORY: CONTEMPORARY ESSAYS 188, 23 Off. (Robert George ed., Oxford Univ. Press 1992).
18. Of course, under the rule of law, the judge or legislator will also be bound personally by whatever is decided.
19. See NEIL MACCORMICK, INSTITUTIONS OF LAW 249-251 (Oxford Univ. Press 2007).
20. Consider, for example, the following discussions of the distinction in modern moral philosophy: Neil Cooper, Morality and Importance, in THE DEFINITION OF MORALITY 91, 97 (G. Wallace & A.D.M. Walker eds., Methuen 1970)
21. P.F. STRAWSON, Social Morality and Individual Ideal, in FREEDOM AND RESENTMENT AND OTHER ESSAYS 26 (Methuen 1974)
22. BERNARD WILLIAMS, ETHICS AND THE LIMITS OF PHILOSOPHY 174-196 (Harvard Univ. Press 1985)
23. and JOSEPH RAZ, THE MORALITY OF FREEDOM 213-216 (Oxford Univ. Press 1986).
24. RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY 132 (Harvard Univ. Press 1999).
25. Washington v. Glucksberg, 521 U.S. 702 (1997).
26. See also Jeremy Waldron, Ego-Bloated Hovel (Reviewing Richard A. Posner's The Problematics of Moral and Legal Theory), 94 NW. U. L. REV. 597, 603-608 (2000).
27. Ronald Dworkin, Darwin's New Bulldog, 111 HARVARD L. REV. 1718, 1730n (1998).
28. POSNER, supra note 17, at 131-132, concedes that a very broad use of "moral" would locate all these institutional questions in the realm of morality and moral reasoning: "In favoring resolution of the issue by the democratic process, I may seem to be smuggling into the analysis a moral theory about the goodness of self-government. I would be if moral theory equaled social theory, so that every claim about the political or judicial process was necessarily a moral claim. But such a confusing equation should be avoided .... It is a moral point only if morality is a synonym for sound policy."
29. Cf. POSNER, supra note 17, at 80, on the low likelihood that those trained in the methods of moral philosophy will be capable of making sound moral decisions when it matters.
30. See MARTHA NUSSBAUM, Finely Aware and Richly Responsible, in LOVE's KNOWLEDGE: ESSAYS ON PHILOSOPHY AND LITERATURE 148 (Oxford Univ. Press 1990), for a contrast of this kind.
31. See JEFFREY ROSEN, THE SUPREME COURT: THE PERSONALITIES AND RIVALRIES THAT DEFINED AMERICA (Henry Holt 2007), reviewed in Jeremy Waldron, Temperamental Justice, 54 N.Y. REV. BOOKS 15 (May 10, 2007).
32. Id. at 274 ("It is true the when particular statutes or precedents prove indeterminate, or when the explicit law is silent, judges do not just push away their law books and start to legislate without further guidance from the law...").
33. See Emily Sherwin, Rule-Oriented Realism, 103 MICHIGAN L. REV. 1578, 1591 (2005).
34. See W. J. WALUCHOW, INCLUSIVE LEGAL POSITIVISM 81-82 (Oxford Univ. Press 1994).
35. See RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION (Harvard Univ. Press 1996).
36. We might add that anyone who wrestles with a constitutional issue - not just judges - ought to pay attention to constitutional law in these cases, not just to the moral issues. Since judges are incomparably better than legislators at this part of the task, this is an additional reason for assigning the final say to judges: Not only are they are better at doing whatever moral reasoning these cases require, they are also better at doing the legal reasoning that these cases require.
37. Cf. Michael S. Moore, Do We Have an Unwritten Constitution? 63 SO. CALIF. L. REV. 107, 112 (1989)
38. ("The value judgments made in the application of statutes are restricted by the existence of an authoritative text, a restriction not found in ordinary moral reasoning").
39. Elucidated most clearly in RONALD DWORKIN, LAW'S EMPIRE (Harvard Univ. Press 1986).
40. Id. at 238-258.
41. See id. at 256.
42. See also the excellent account in John Finnis, Natural Law And Legal Reasoning, in NATURAL LAW THEORY, supra note 13, 134, at 141-142, where Finnis associates the technicality, the distinctiveness, and the peculiar elusiveness of legal reasoning with the distinct moral task that law has to perform in a pluralistic society.
43. Rawls, Outline, supra note 10
44. and JOHN RAWLS, A THEORY OF JUSTICE 48-51 (Harvard Univ. Press 1971).
45. Thus Dworkin, for example, regards the duty of integrity as one important part of morality, not as something separate from morality. See DWORKIN, supra note 32, at 164-178.
46. See supra text accompanying notes 17-21.
47. See MACCORMICK, supra note 15, at 249-251.
48. See supra text accompanying note 14.
49. Notice that this remains the case even if we accept that the voter should be addressing what Rousseau would term issues of the general good. See JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT 153 (Penguin Books 1968) (bk IV, ch. 2).
50. See also the comments on the judge's duty of fairness to existing political sentiments in DWORKIN, supra note 32, at 249.
51. Jackson v. Bullock, 12 Conn. 39 (1837), Bissell J. dissenting - cited by ROBERT COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS 120 (Yale Univ. Press 1975).
52. See, e.g., Rudolph J. Gerber, On Dispensing Injustice, 43 ARIZ. L. REV. 135, 168 (2001)
53. and Benjamin Zipursky, Conflicts of Integrity, 72 FORDHAM L. REV. 395, 397 (2003).
54. See HENRY DAVID THOREAU, Civil Disobedience, in WALDEN AND CIVIL DISOBEDIENCE 383 (Penguin Books 1983).
55. Incidentally, Cover himself did not condemn out of hand the slavery judges whose evasions he described. He did say that "[t]he judicial conscience is an artful dodger" and that "[b]efore it will concede that a case is one that presents a moral dilemma, it will hide in the nooks and crannies of the professional ethics, run to the cave of role limits, [and] seek the shelter of separation of powers" (COVER, supra note 43, at 201).
56. But Cover's main criticism of the judges he described was that they were insufficiently inventive, legally, less resourceful than they could have been in the ways of the law, neglectful of various sources of law that might have taken them in another direction, not that they failed to switch from legal reasoning to individual moral reasoning. Cover also acknowledged the complexity of the judges' position, including its moral complexity, denying that deference to existing statutes and constitutional provisions is a formalistic or amoral position. There were, he argued, good moral reasons that a responsible moral agent would have to grasp as to why it might be inappropriate for a judge to follow his own conscience in these matters. (This last point is analogous to the argument considered earlier about the moral reasons behind following precedent and deferring to other bodies' enactments; see supra text accompanying note 37).
57. DWORKIN, supra note 32, at 211.
58. See MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 63 (Princeton Univ. Press 1999) (arguing that we should not criticize legislators for failing to reason as judges do, for reasoning like judges may not be a smart way to address the issues at stake).
59. See JOHN STUART MILL, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT 109 (Prometheus Books 1991)
60. and DWORKIN, supra note 32 at 217-219 (on the principle of legislative integrity).
61. See Waldron, supra note 2, at 1383-1385
62. and Jeremy Waldron, Legislating with Integrity, 72 FORDHAM L. REV. 373, 390-391(2003).
63. PARL. DEB., H.C. (5th ser.) (1966) 1067-1166.
64. Roe v. Wade, 410 U.S. 113 (1973).
65. For the paragraphs on privacy and the importance of reproductive rights are, see id. at 153-155
66. for the paragraphs arguing in moral terms about the alleged rights or personality of the fetus, see at id. at 159-160.
67. Jeremy Waldron, Judicial Power and Popular Sovereignty, in MARBURY VERSUS MADISON: DOCUMENTS AND COMMENTARY 181, 195 (Mark Graber & Michael Perhac eds., CQ Press 2002).
68. For "gravitational force," see RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 111 (rev. ed., Duckworth 1977).
69. I acknowledge this in Waldron, supra note 2, at 1370.
70. See supra note 2.
71. See Waldron, supra note 2, at 1381.
72. I do not mean that courts are unfamiliar with majority decision making. They use it all the time. But their use of it makes little sense and is not motivated in the way that its use in the legislature is. In the legislature we accord equality to the representatives and allow the use of a decision mechanism specifically oriented to their equality because of the connection, through elections and representation, to the ultimate political equality of individual citizens. No such connection makes sense in the case of judges. For a fuller discussion of this, see Waldron, supra note 2, at 1391-1393.