International Journal of Constitutional Law
Published: 01 January 2009
Debates about judicial authority―including debates about the desirability of judicial review of legislation—sometimes turn on the question of whether judges have superior skills when it comes to addressing what are, essentially, moral issues about rights. This paper considers the possibility that the answer may be “no,” not because judges are inept morally, but because the institutional setting in which they act and the role that they adopt both require them to address questions about rights in a particular legalistic way—indeed, in a way that, sometimes, makes it harder rather than easier for essential moral questions to be identified and addressed. Of course, what we want is for moral issues to be addressed, not as one would make a personal moral decision, but in the name of the whole society. Perhaps the judicial mode of addressing them satisfies that description, but there are other ways of satisfying it too—including legislative approaches, which proceed by identifying all the issues and all the opinions that might be relevant to a decision, rather than artificially limiting them in the way that courts do.