I am well aware that this is a somewhat reductionist interpretation of Waldron's words, but I hope to explain this claim in a rather different light from those commentaries that might adopt a more analytical approach. This commentary will be devoted to precisely this claim of universal validity. Hence, as a philosopher, he assigns to them a universal value since, according to him, moral philosophy or political philosophy or even legal theory are concerned with problems that are raised in the same way in all countries-these are mainly problems regarding the rights of individuals in modern democracies.
Waldron outlines his theories based on conceptual categories taken from his discipline: moral philosophy. I shall attempt to explain why this is a groundbreaking theory in section 1. Another interesting feature of this essay is that, in line with some of his previous books, 8 Waldron takes a risk by praising legislatures at the expense of judges in matters of morality and rights. Hence, it is paradoxical to find a philosopher objecting to the fact that the legal expert moralizes the law too much. One aspect of the essay that I found noteworthy is that Waldron, as a moral philosopher, is criticizing a sort of moral excess on the part of Dworkin, the legal expert, who would be wrong-according to Waldron-in exaggerating the role of moral reasoning in judicial reasoning. 7 Therefore, this article renews the criticism of judges and of judicial review per se by basing it on arguments that are no longer merely political (concerned with democratic representation) but also moral. Its innovative nature lies mainly in the fact that he criticizes the legitimacy of judges in terms of their “institutional competence,” which, in turn, is examined through a consideration of the internal reasoning of judges this contrasts with the prevailing literature, which mainly studies the issue of judges’ political legitimacy. The second argument 6 runs as follows: what judges and legislatures have in common is that they must engage in moral reasoning by taking into account the viewpoints of others “in the name of society.” And here, once again, judges-bound by the law-are less well equipped to fulfill this requirement than legislatures, which are freer to raise the issues of rights that are posed in society.īefore discussing Waldron's theories, I would like first to point out the tremendous contribution made by his article.
The undistracted philosophy book professional#
They have a worthy competitor in the person of the legislator, who is not bound by the same set of professional ethics. Hence, given this interference by the law in moral reasoning, Waldron seeks to disprove Dworkin's theory, arguing that because judges are legal specialists and are obliged to reason as such, they are not in a more legitimate position to defend moral positions. 5 In short, the moral reasoning of judges is an impure reasoning for a specialist in ethics because there is an inevitable mélange of both levels of reasoning-both legal and moral.
The first concerns the specific nature of judicial reasoning, which, when viewed from the standpoint of moral philosophy, seems impure since judges, unlike legislators, must take into account the constraints of legal reasoning. To dispute the exclusive legitimacy of judges, upheld by Dworkin, Waldron employs two different arguments. Supreme Court in particular, are better at dealing with “the most fundamental issues of political morality” as issues of “principle and not political power alone.” 4 With this claim, the author is targeting a specific author, Ronald Dworkin, 3 especially his theory that judges, and the U.S. This is how we understand the subtext of the refutation of current opinion summed up by his formula JGM (Judges are Good at Morality). What this article contributes, compared with the author's previous papers, is a theory that challenges the “institutional competence” 2 of judges. In “Judges as Moral Reasoners,” 1 Jeremy Waldron supports the theory-one he has already defended elsewhere-that, in terms of moral philosophy, judges are no better than legislators at expressing the moral positions indispensable for defending rights and that the latter would be preferable in performing this task.
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