Refining the question about judges' moral capacity

Abstract

The question about whether judges are better than legislatures at identifying and addressing the moral issues associated with rights needs to be posed in a more refined way that takes account of the suggestions made by Professors Beaud, Dyzenhaus, and Sadurski. As Professor Sadurski points out, it is not clear that issues about rights differ in their moral salience from other decisions that need to be faced in politics. Professor Dyzenhaus insists, quite rightly, that the question be posed as a question about institutional competence and institutional procedures. In this response, however, I argue that that reformulation does not make the question go away; it just poses it in a more complex setting. Professor Beaud rightly emphasizes that the question is usually raised in this form only in common law systems. Here, however, I argue that the fact that moral reasoning is concealed beneath the esoteric structures of adjudication in civil law systems does not mean that my question has no application there. All it means is that, in order to answer it, we must persuade judges to be a little more candid about what they are doing. © The Author 2009. Oxford University Press and New York University School of Law. All rights reserved.