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

Abstract

Both defenders and critics of judicial review assume that a special moral capacity is needed for a correct articulation of constitutional rights, although they disagree about who is likely to possess this moral capacity to a greater degree. In this comment I challenge such an assumption. Reasoning that is oriented toward rights articulation is not "more moral" than non-rights-oriented authoritative public decision making. Rights-related reasoning cannot be shown to be "differently moral" in order to justify why some political actors - such as judges - may be better suited to performing this particular type of moral reasoning than others - such as legislators. The best argument for such a distinction hinges on the opportunity an actor may have to conduct "moral thought experiments," which is what judges, as part of their professional duties, normally do. But there is no justification for believing that such "experiments," triggered by specific, factual situations, should be privileged, as a method of moral reasoning, over abstract, principle-based reasoning. If anything, a good case can be made for deliberately abstracting from specific cases and focusing on the general, along the lines of a Rawlsian "reflective equilibrium". © The Author 2009. Oxford University Press and New York University School of Law. All rights reserved.