Abstract

Who is the best moral reasoner, the judge or the legislator? The aim of this paper is to refine this question, by distinguishing between different metaethical assumptions. If the meta-ethical assumptions of arguers are incompatible or if their institutional goal is to establish some truth, there is no way of entering into a constructive argumentative activity. My claim is that only when arguers renounce any epistemic temptation and feel empathy with respect to others’ arguments, caninstitutions improve the quality of their judicial and democratic arguments, and therefore gain authority.

Highlights

  • Human rights judges are often called upon to apply very indeterminate normative formulations, typical of the declarations of human rights, which incorporate moral values

  • The aim of this paper is to show that the understanding of, and the answers to, these questions depend, at least partially, on the role that truth and emotions play in judicial moral reasoning and in the constitution of the democratic game

  • When we say that certain democratic or judicial actors are more competent for discovering the truth, we are weakening the authority of the supposedly less competent actor

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Summary

Introduction

Human rights judges are often called upon to apply very indeterminate normative formulations, typical of the declarations of human rights, which incorporate moral values (such as dignity, liberty, etc.). As far as this task depends, at least partially, on some moral judgment, the question of what kind of moral reasoners they are seems to be central. Even if the judicial format is still traditional, it is undeniable that beyond the appearance of a mechanical application of some evident (international) rules or principles, there is an authentic evaluation Such an evaluation, because of the format, is often poorly understandable (van den Hoven 2011). That justifies the need for a deeper analysis of the judicial argumentation and of its implicit meta-theoretical assumptions.

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