Are legislatures good at morality? Or better at it than the courts?

Abstract

This essay criticizes Jeremy Waldron’s assumption that debate about judicial review of statutes requires us to suppose, when it comes to moral reasoning about the law, that either judges or legislatures are good at it and, based on that supposition, to choose which institution should be assigned the task. Waldron does not hold fast to his own assumption — his claim turns out to be that legislatures should have fi nal authority in moral matters, since they are better at moral reasoning than judges. He thus abandons a central tenet of political positivism — namely, its hostility to judges having any role at all in moral reasoning about the law. Thus, Waldron is engaged, not in an argument against judges playing such a role but, rather, in a debate about how to best to design legal institutions, given that judges will, in fact, have an important role in that moral deliberation. In “ Judges as Moral Reasoners, ” Jeremy Waldron seeks to narrow the scope of his wide-ranging critique of judicial review to one issue: the claim that judicial review is justifi ed because judges are good at morality, or “ JGM ” for short. More precisely, he argues against the claim that judges are better at morality than legislatures, which, in his view, is an important strand in any justifi cation of the place of judges as the fi nal authority when it comes to the great questions of constitutional law — the interpretation of the moral standards entrenched in bills of rights. Waldron’s understanding of this claim is appropriately complex. First, judicial reasoning is not understood in a compartmentalized, positivistic way, according to which legal reasoning and moral reasoning are two different tasks in which judges — in what we may describe as bill-of-rights legal orders — have to engage. Rather, following Ronald Dworkin, Waldron takes judicial reasoning to be inextricably both moral and legal. Second, again following Dworkin, he recognizes that one should see that there are moral reasons to support the fact that JGM has to give pride of place to positive legal materials, with the result that judicial moral reasoning is not the unalloyed moral reasoning in which academic philosophers engage but, rather, reasoning about the best moral interpretation of the law. Third, and consequently, he emphasizes that