Modern Moral Reasoning and Emerging Trends in Constitutional and Other Rights Decisionmaking Around the World

Abstract

Moral reasoning refers to an effort to identify how persons ought to behave and what ought to be. Sometimes in philosophy this has been referred to as a search for “the good.” Of course, ideas on what is good have differed from one society to another and have changed from time to time within individual societies. At all times, however, the question of the morality of “egotism” or “self-interest” has been central to the debate. Explicit acknowledgment of this fact, and the triumph of non-egocentric modes of moral reasoning in the modern world, can help explain current moral and legal reasoning by constitutional courts and other actors around the world. In pursuit of this explanation, this article discusses traditional views on the morality of egocentric versus non-egocentric thought, with non-egocentric thought based on a requirement of giving all individuals equal concern and respect, phrased in religious terms as love of neighbor as thyself. The article then notes the emerging trend among constitutional courts and other actors around the world to adopt the non-egocentric moral principle of equal concern and respect as the basis for moral and legal decisionmaking. This is done in the context of equal protection law, particularly rights of gender equality; autonomy interests, including respect for diverse views as long as they do not trample on the diversity rights of others; economic rights; and review of government criminal and administrative action. Finally, the article discusses the modern explication for the rationality of adopting non-egocentric thought as the basis for moral reasoning.