Rights and moral reasoning: An unstated assumption - A comment on Jeremy Waldron's "Judges as moral reasoners"

International Journal of Constitutional Law

Volumn 7, Issue 1, 2009, Pages 25-45

  Sadurski, Wojciech ^a,b  

^a EUROPEAN UNIVERSITY INSTITUTE   (Italy)

^b UNIVERSITY OF SYDNEY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 58849153234     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mon033     Document Type: Conference Paper

References (50)

1. Wojciech Sadurski, Judicial Review and the Protection of Constitutional Rights, 22 O.J.L.S. 275 (2002)
2. see also WOJCIECH SADURSKI, RIGHTS BEFORE COURTS ch. 2 (Springer 2005).
3. Jeremy Waldron, Judges as Moral Reasoners, 7 INT'L J. CONST. L. (I·CON), at 2-24 (this issue).
4. The list is too long, and probably too familiar to most readers, to warrant a bibliographical footnote here. To those who need these references, the best advice is to consult the literature cited in the footnotes to Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L. J. 1346 (2006) (especially 1351 n. 14, 1352 n. 19, 1359 n.42, 1361 n.46 and 47, and 1379 n.89).
5. It resonates with Waldron's recognition that "disagreements about rights are often about central applications, not just marginal applications." Waldron, supra note 3, at 1367.
6. JOSEPH RAZ, THE MORALITY OF FREEDOM 181 (Clarendon Press 1986).
7. Id. at 213.
8. Id.
9. Id.
10. Id. at 214.
11. The last two sentences deliberately paraphrase Raz: "The mistake is to think that one can identify, say, the rights of others, while being completely ignorant of what values make a life meaningful and satisfying and what personal goals one has in life. Conversely, it is also a mistake to think that one can understand the values which can give a meaning to life and have personal goals and ideals while remaining ignorant of one's duties to others." Id.
12. Waldron, supra note 2, at 7.
13. Michael S. Moore, Law as a Functional Kind, in NATURAL LAW THEORY: CONTEMPORARY ESSAYS 188, 230 (Robert P. George ed., Oxford Univ. Press 1992).
14. U.S. CONST. art. III.
15. See SADURSKI, supra note 1, at 65-74 (discussing various implications of the distinction between abstract and concrete review) and at 74-79 (comparing ex-ante and ex-post judicial review). Note that for Waldron ex-ante review is not really judicial review but rather "[s]omething that amounts in effect to a final stage in a multicameral legislative process, with the court operating like a traditional senate"
16. Waldron, supra note 3, at 1359. But when the ex-ante review is exercised toward acts already passed by the parliament but not yet promulgated, as is the case with the Conseil Constitutionnel in France (and, as one among a number of possible procedures for constitutional review, in Poland), the review that the court exercises is virtually indistinguishable from an ex-post abstract review of a recently adopted statute. The operative distinction is therefore that between abstract and concrete, rather than between an ex-ante and ex-post, review.
17. See ALEC STONE SWEET & MARTIN SHAPIRO, ABSTRACT AND CONCRETE REVIEW IN THE UNITED STATES, ON LAW, POLITICS AND JUDICIALIZATION ch. 6 (Oxford Univ. Press 2002)
18. see also Alec Stone Sweet, Why Europe Rejected American Judicial Review: And Why It May Not Matter, 101 MICH. L. REV. 2744 (2003).
19. See NEIL MACCORMICK, LEGAL RIGHT AND SOCIAL DEMOCRACY 159-160 (Oxford 1982)
20. see also RAZ, supra note 5, at 166, 180
21. Jeremy Waldron, Introduction, in THEORIES OF RIGHTS 1, 13-14 (Jeremy Waldron, ed., Oxford Univ. Press 1984). This definition does not necessarily exclude group (or collective) rights but only implies that in "group rights" a group that is a holder of a right asserts these rights against some larger entity so is modeled on the position of an individual asserting his/her rights against a group to which he or she belongs.
22. See, in particular, RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 90-94 (Duckworth 1977).
23. A fundamental point to mention is that reflective equilibrium is not employed by Rawls as a way of supporting the principles of justice directly but only as a way of arriving at a satisfactory description of the original position, see RAWLS, A THEORY OF JUSTICE 19-21 (Oxford Univ. Press 1971). But this is not significant for our discussion here, and I will be using reflective equilibrium as if it could be used to argue about moral principles directly.
24. Id. at 20.
25. Id. at 46.
26. Id. at 20.
27. Id.
28. Id.
29. JOHN RAWLS, POLITICAL LIBERALISM 8 n.8 (Columbia Univ. Press 1993).
30. While the process is privileged for Rorty, it should be understood that his main concern, in the context of his article on sentimentality and human rights, is with the moral educator, not the moral reasoner; the aim is to make people behave better toward each other rather than articulate the best principles of justice and right; or to put it differently, Rorty is concerned by motivation, not justification. Richard Rorty, Human Rights, Rationality, and Sentimentality, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 111 (Stephen Shute & Susan Hurley eds., Basic Books 1993).
31. See similarly, MICHAEL FREEMAN, HUMAN RIGHTS: AN INTERDISCIPLINARY APPROACH 56 (Polity 2002).
32. RAWLS, supra note 18.
33. BRUCE A. ACKERMAN, SOCIAL JUSTICE IN A LIBERAL STATE (Yale Univ. Press 1980).
34. See Rawls' discussion of this concept in RAWLS, supra note 18, at 184-90, and in the literature he cites at 184 n.34.
35. Id. at 187.
36. STEPHEN HOLMES, THE ANATOMY OF ANTILIBERALISM 229 (Harvard Univ. Press 1993).
37. Id. at 230.
38. RAWLS, supra note 24. at 137.
39. A broader wording of the "ideal expressed by the principle of legitimacy" is "to live politically with others in the light of reasons all might reasonably be expected to endorse," id. at 243.
40. For yet another statement of the liberal principle of legitimacy, see id. at 217.
41. JÜRGEN HABERMAS, THE INCLUSION OF THE OTHER: STUDIES IN POLITICAL THEORY 81 (MIT Press 1998) (emphasis in the original). The same point has been well expressed by Waldron: "If there is some individual to whom a justification cannot be given, then so far as he is concerned the social order had better be replaced by other arrangements, for the status quo has made out no claim to his allegiance," JEREMY WALDRON, LIBERAL RIGHTS 44 (Cambridge Univ. Press 1993), (emphasis in the original).
42. "The social contract conception of [the Law of Peoples], more than any other conception known to us, should tie together, into one coherent view, our considered political convictions and political (moral) judgments at all levels of generality," JOHN RAWLS, THE LAW OF PEOPLES (Harvard University Press, Cambridge Mass. 1999) at 58.
43. RAWLS, supra note 18, at 47.
44. Id. at 47.
45. Id. at 19.
46. Id. at 19.
47. Id. at 20.
48. RAWLS, supra note 24. at 8.
49. Waldron, for one, argues that this is not the case, especially as far as appellate courts are concerned; Waldron, supra note 3, at 1379-1380.
50. To be sure, no such unstated assumption can be read into the paper under discussion though he does not rebut it, either; it has been, however, made in his article The Core of the Case against Judicial Review, where he argued both that it is not the case that appellate courts typically consider "flesh and blood individual situations," id. at 1379, and that legislators often do consider individual cases when initiating or processing legislative proposals, id. at 1380.