dworkin the judge new role

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* Sommer Professor of Law and Philosophy at New York University and Quain Professor of Jurisprudenceat University College, London.

..............................................................................................................................................................Journal of International Criminal Justice 1 (2003), 412

Journal of International Criminal Justice 1, 1 Oxford University Press, 2003.All rights reserved...........................................................................................

The Judges New Role:Should Personal ConvictionsCount?

Ronald Dworkin*

AbstractIn the decades following the Second World War, for a number of reasonsconstitutional and international judges have increasingly confronted andpronounced upon moral issues for the purpose of interpreting basic principles ofjustice and democracy. In so doing, they have inevitably grounded their decisionsin their own moral convictions. However, as personal convictions vary fromjudge to judge, the development at issue poses the question whether this new roleof judges is consonant with the principles of justice and democracy. The authorargues that it is. Judges are supposed both to do nothing that they cannot justifyin principle, and to appeal only to principles they undertake to respect in othercontexts. Furthermore, government by adjudication is better suited to thepresent cultural and ethical pluralism than are other possible alternatives.

In this paper I propose three questions about the contemporary role of judges inannouncing, interpreting and enforcing the basic principles of justice and democracy.(1) Is there any way that judges playing that role can avoid relying on their ownpersonal moral convictions, which may be different from those of most of their fellowcitizens, and in any case will vary from judge to judge? (2) If not, is this judicial roleobjectionable? (3) Such authority is indeed thought unjustified by many critics, andjudges characteristically deny that that they rely on their own personal moralconvictions in exercising it. Why, then, have so many democracies emerging as wellas mature adopted constitutions that inevitably give judges the power that the criticsdeplore and the judges strain to deny that they have?



The Judges New Role 5

1. The Increasing Impact of Moral Pronouncement in theJudicial Arguments of Constitutional and InternationalJudgesI know that many non-lawyers (and even some law professors, lawyers and judges)think that law is wholly independent of morality, and that judges who appeal to moralprinciples or ideals to support their decisions are trespassing on the roles of priests,statesmen and moralizers, and violating their responsibilities to decide casesaccording to what the law is, not what it should be. That positivist canon was neverdefensible nor, perhaps, would any of us here defend it. It was not true even when thehighest courts of modern democracies were occupied almost entirely with enforcingcodes or statutes or applying the precedent decisions of the common law to newsituations. The strict positivistic sources of law had fuzzy boundaries and left gaps;these had to be sharpened or filled in with interpretation, and interpretation requiresjudges to decide which way of continuing the story that the legislature or other judgeshave begun is the most satisfactory all things considered. That is a judgment that ismoral at its core.

In the decades after World War II, more and more of these democracies gave judgesnew and except in the United States unprecedented powers to review the acts ofadministrative agencies and officials under broad doctrines of reasonableness, naturaljustice and proportionality, and then even more surprising powers to review theenactments of legislatures to determine whether the legislatures had violated therights of individual citizens laid down in international treaties and domesticconstitutions. The impact of moral pronouncement on judicial argument thus becamemuch more evident and pronounced. In recent years international courts of differentkinds, including international constitutional courts like the European Court ofHuman Rights, have become progressively more important, and the role and powersof judges have therefore acquired yet a further dimension.

The new role is different from the traditional one in three interconnected ways.First, the need for judges to confront moral issues is more pervasive in generaladministrative regulation, and much more pervasive in constitutional and inter-national adjudication, than it is in either ordinary statutory interpretation orcommon law development. The law of crime, property, contract, commerce andpersonal injury can indeed must be structured by technical rules whoseoperation can be predicted with reasonable confidence by homeowners, testators,business men and insurance companies. Of course these technical rules raise deepissues of fairness and personal responsibility, and such issues are the heart of thematter when judges decide novel cases at the boundaries of the rules, and when theyundertake some needed reorganization or reform of them. But the visible impact ofjudicial moralizing is often small in such cases. The role of moral judgment is pervasiveand undeniable in administrative regulation, on the other hand, because thestandards of that task are themselves set out in moral language the language ofconvenience and necessity, or reasonableness, or proportionality, for example andbecause it requires judges to choose among contested conceptions of economic and



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1 See Selmouni v. France (28 July 1999). See in particular 101, where the Court stated that havingregard to the fact that the Constitution is a living instrument which must be interpreted in the light ofpresent-day conditions . . . the Court considers that certain acts which were classified in the past asinhuman and degrading treatment as opposed to torture could be classified differently in future. Ittakes the view that the increasingly high standards being required in the area of the protection ofhuman rights and fundamental liberties correspondingly and inevitably require greater firmness inassessing breaches of the fundamental values of democratic societies.

administrative efficiency, and to fix an interaction and balance between efficiency andother moral values.

The role of moral judgment is still more pervasive and less deniable in constitutionaladjudication, because the pertinent constitutional standards are even more explicitlymoral: they declare rights of free expression, treatment as equals, and respect for lifeand dignity, and sometimes make exceptions for constraints necessary in ademocratic society, for example. In ordinary code or statutory interpretation, and incommon law adjudication, novel or otherwise testing cases are hard most oftenbecause they lie at the boundaries of what is settled. In constitutional adjudication, onthe other hand, cases are often hard not because they lie at the borders of doctrine, butbecause they call for a fresh understanding of the most basic underlying grounds ofdoctrine. The question whether the right of free expression, properly understood,protects hate speech or speech insulting or offensive to persecuted minorities, forinstance, or whether some prohibition of such speech is necessary in a genuinelydemocratic society, requires reflection on some of the deepest issues of politicalmorality on the reason why free speech should be protected and on the bestconception of democracy. Many examples can be found in international adjudication.Article 3 of the European Convention on Human Rights, for example, provides thatNo one shall be subjected to torture or to inhuman or degrading treatment orpunishment, and in 1999 the European Court made plain that its members wererequired to decide, as a contemporary issue of political morality, whether certainforms of treatment that were not regarded as torture in the past must be treated thatway now.1 Of course, practice and precedent will shape (in different ways in differentjurisdictions) how any particular judge must reflect on those issues. But, particularlyin the formative period of a nations (or a continents) constitutional law, precedentand practice will be thin and, in any case, the question how and to what degree ajudges moral reflection on constitutional issues should be shaped by practice orprecedent is itself a deep and contested question of political morality, as I shall shortlyemphasize.

Second, the moral issues that constitutional judges face are often the mostcontroversial and divisive in the community. Ordinary adjudication raises moralissues, as I said, but these are rarely issues that are subjects of wider public notice ordisagreement. Whether it is right that a murderer inherit property from his victim, orfair that someone whose negligence has caused gigantic damage should bear theentire financial responsibility, are not matters of great public concern or attention,and if they were to become so they would probably not generate violent controversy.But the moral issues that figure in constitutional adjudication are the most divisive




possible: in the United States they include questions about abortion and euthanasia,about racial and other forms of discrimination, about whether government mayfavour disadvantaged minorities, and about whether prayers may be said in publicschools or at college football games. The notoriety of these moral issues guaranteesthat the judicial role in deciding them will itself become a matter of public attentionand at least occasional hostility.

Third, the moral issues at the heart of both administrative and constitutionaladjudication are largely matters of political morality rather than individual ethics.The issues of fairness that occupy ordinary adjudication are matters of howindividuals should treat one another in business, or in creating risk and compensatingfor damage, for example. But the issues for judges in constitutional cases are abouthow government should or may treat its citizens. When a constitutional courtconsiders how far government may make abortion or euthanasia a crime, it is notconsidering at least not directly whether these practices are wicked or immoral. Itis considering whether government may properly decide those questions for everyonesubject to its power, or whether it must rather allow individuals to judge the ethics ofabortion or suicide for themselves. (The public is often careless about that distinction:many people believe that the United States Supreme Court has decided that abortion ismorally permissible and that assisted suicide is morally wrong.) Of course, there arecomplex interconnections between issues of individual ethics and of political morality whether government may properly prohibit abortion depends crucially, forexample, on whether abortion is the murder of a human creature with interests of itsown. But the central moral issues of constitutional adjudication are neverthelesspolitical not individual.

The prominence of moral issues in constitutional adjudication has made judges intopublic figures, particularly in the United States, but also, to a growing degree, in othercountries. Even in Britain, which has only just decided (in effect) to bring theEuropean Convention on Human Rights into its domestic law, and thus to give thepowers and responsibilities I have been discussing to judges, the background andpolitical stance of individual members of the Judicial House of Lords is alreadybeginning to attract attention. (New Law Lords will be appointed soon, and thequestion of who will be appointed is receiving much more attention than suchpromotions used to attract.) The new attention (in the United States the long-standingattention) is very often, and sometimes fiercely, critical. It is widely thought that thereis something wrong with judges pontificating about controversial matters of ethicsand political morality. Even sophisticated lawyers and judges who accept that judgesmust necessarily weave moral judgments into their arguments seem embarrassed bythat fact, and they are dogged in their insistence that judges need not and should notinvoke what is often called their own personal morality. Much ingenious argumenthas been devoted to attempting to show why and how judges can avoid or at leastsubstantially reduce any reliance on their own personal convictions about the moralissues in play.

It is understandable that the lay and professional public and the judges themselves are anxious to insist that when judges decide whether their countries may ban



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abortion, or authorize their police to terrorize terrorists, or prevent the publication ofracially inflammatory or insensitive literature, these judges are not simply imposingtheir own personal moral convictions, which may be idiosyncratic, on the multitudeof their fellow citizens. It seems undemocratic that such fundamental issues should bedecided by a small group of appointed officials who cannot be turned out of office bypopular will. Judges disagree about political morality among themselves, moreover,and it also seems unfair that important decisions should turn on which panel of judgeswas sitting at the time, particularly since judicial appointments are often matters ofpolitics and even luck rather than a solemn assessment of merit. So the mostresponsible lawyers and judges emphasize, whenever they can, that when judgesdeliberate about matters of moral dimension they are not (or at least not usually oroften) relying on their own personal moral convictions. They say that the judges arerelying on something else: the morality of the community as a whole, for example, orthe principles embedded in the nations history. Or that they need not rely on freshmoral judgments at all, because except in particularly outrageous cases they can andshould defer to the judgment of other officials the domestic legislature or someinternational body or assembly, for example. It seems unlikely that any lawyer whostated that when moral judgment is necessary he would rely on his own personalconvictions would find himself appointed to a constitutional court.

Nevertheless our judges assurances that they do not rely on their own personalmorality, however honest, are delusional: they gain whatever plausibility they havebecause the convictions on which constitutional judges rely are almost always, as Isaid, distinctly political convictions rather than the kind of ethical judgment that mostpeople think of as moral. Consider the popular opinion I mentioned: that when judgesdefine some constitutional right by deciding, for example, whether freedom ofexpression includes the right to defame a minority religion or race they should defer,except in truly shocking cases, to the judgment of a legislature or other elected body. Ifa national legislature has decided that the constitutional right of free expression doesnot extend that far, or that an exception condemning hate speech is necessary orpermissible in a democratic society, then judges should not substitute their owncontrary personal convictions. In that way (it is said) judges can avoid simplyenforcing their own personal morality. But that is an evident mistake, for these judgesare certainly enforcing their own convictions of political morality their ownconceptions of how decisions should be made in a genuine democracy and theseconvictions are as much moral, and as much controversial among judges, as the moredirectly substantive opinions that they claim to have set aside.

Judges who appeal to history or to the supposed morality of the community as awhole are also plainly relying on their own controversial political convictions, in twoways. First, these judges have embraced the surely controversial conviction thathistory or popular opinion should govern what rights individuals have. Second, sincethere will inevitably be a wide variety of different competing interpretations of thecommunitys history respecting free speech, or of what opinion about free speech isthe view of the contemporary community as a whole when individual citizensdisagree, an interpreter must rely on his own sense of the point of free speech and the




correct understanding of the democratic ideal in order to decide which of thesecompeting interpretations is best. The role of a judges own convictions of justice andfairness may be more obscure in such decisions than it is when he speaks directlyabout the morality or immorality of abortion, for example. But it is no less decisive.True, opinions about the character of democracy are not often debated, or evenrecognized, by the general public, so that judges who declare for one or anotherconception of democracy are not taking sides on hotly contested public issues. But ifthe public came to understand the importance of such abstract issues of politicalmorality for the more substantive issues they do care about if they came tounderstand the consequences of one or another view for a courts decisions about racerelations, for example, as Americans did in the course of a recent bitterly contestedSupreme Court nomination then the abstract issues would become instantly morecontroversial for that reason.

The educational and professional background of most constitutional judges in ourcountries, and the methods by which they are selected, tend to insure that, at least forthe most part, their personal convictions are not eccentric that they fall (in anexpression popular in America) within the mainstream of popular opinion. Therehave been times (I believe one such time is now in the United States) when historyproduces a group of constitutional judges whose political morality is in importantrespects radical by conventional standards. Even then, the opinions of the non-mainstream judges reflect an important even if not a dominant segment of opinion.These political realities no doubt contribute to the felt legitimacy of judicial review.But the constraints they impose are de facto, not normative: a judges convictions arenone the less personal because they are likely to be popular, or at least not toounpopular.

2. Is it Undemocratic to Let Judges Have the Final Decisionon Large Moral Issues?So there is no bedrock of interpersonal consensus or institutional allocation of poweror historical fact on which a constitutional judge can rely in place of expressing his orher own personal convictions of political morality. Every decision a judge makesenforcing the broad moral provisions of a constitution to new issues demands theexercise of his own judgment of substantive justice or his own understanding of whata fair distribution of political power requires. This fact raises issues of legitimacy thatare much chewed over in American constitutional theory, but fresher in Europe. Is itundemocratic for judges to have what is in effect the final decision over large moralissues?

We might consider three responses to that question. The first points out that mostpeople in the nations in which judges have been given that responsibility do not objectto it, and from time to time, in different ways, endorse it. But though this statesanother important political fact, it is not satisfactory as a full answer, because the finalquestion must be not what the people do accept but what they do right to accept. If

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judicial review means an abdication of the peoples democratic right to governthemselves, then that abdication might be wrong even though voluntary. And, ofcourse, not everyone believes that government by judiciary is acceptable: manypeople think it deeply wrong.

The second response concedes that, at least according to the standard definition ofdemocracy as majority rule, it is undemocratic for judges to have the powers I havebeen describing. But it insists that democracy compromised in that way is a betterform of government than a purer form of democracy because the former produces amore just community by protecting the rights of minorities. That is a popular view,but once again I find it unsatisfactory. Democracy is the name not just of one type ofpolitical arrangement, but of an important political value. It stands for equality in thedistribution of political power for self-government in that distinct and special sense and if we concede a compromise of political equality we concede something importantand regrettable. How can we be confident that the result of that compromise is greaterjustice if the compromise is itself a deep injustice? We do better to take the challengemore seriously: instead of asking simply whether some judicial power is undemocraticaccording to one traditional understanding of what democracy is, we must askwhether it is undemocratic according to the best understanding of that ideal.

The third response, which is more ambitious than the other two, undertakes thattask. Once we notice that the traditional majoritarian conception of democracy is onlyone among several such conceptions that philosophers have identified and discussed,then we are likely to reject that majoritarian conception, because there is nothinginherently fair, and nothing that provides genuine self-government for all, simply inthe fact that more people favour one decision than favour another. Majority rule is faironly when certain conditions are met only, for example, when people have agenuine and equal right to participate in the public argument that produces themajority decision, and only when issues of distinct importance to individuals, like thechoice of religious commitment, are exempt from majoritarian dictate altogether. Ifwe understand democracy to mean not majority rule in itself, but majority rule underappropriate conditions, then it does not compromise but rather protects democracywhen effective means are deployed to secure those conditions. It therefore begs thecrucial question to say that judicial power undermines democracy: we must look tosee whether the consequence of that power is in fact greater democracy because it hashelped to achieve a more genuine realization of the conditions that genuinedemocracy requires. Of course, judicial review of legislation is not the only means thata society may choose to attempt to secure those conditions. I shall shortly discussanother means that was formerly thought superior in most mature democracies:parliamentary conscience and restraint. My claim now is only that whether judicialreview is undemocratic is a substantive not an institutional question: we must look, atretail, to the particular constitutional provisions that judges enforce in particularjurisdictions, and to how they enforce them, to see whether, all things considered,democracy is improved or worsened by that feature of the societys politicalarrangements.




3. Government by Adjudication, or Judges as PopesThe role now played by judges wielding power in service of conscience was onceplayed by priests and then later by politicians. These were shifts not just in personnelbut in moral epistemology as well. Priests ruled by divination from the occult, as theystill do, for example, in Iran. Democratic politicians now rule, not by the instinctivewisdom and fairness celebrated in the old parliamentary model, but by representation,which means by compromises, trade-offs and political deals that do not even aim atcoherence. Neither priests nor politicians have a responsibility of justification inprinciple, of capturing all that they do in more general formulations of right andwrong. Any such responsibility would undermine the emotional base of priesthood,which is mystery, or cripple the accommodating and pragmatic strategies ofpoliticians.

But that responsibility for articulation is the nerve of adjudication. Judges aresupposed to do nothing that they cannot justify in principle, and to appeal only toprinciples that they thereby undertake to respect in other contexts as well. Peopleyearning for reasoning rather than faith or compromise would naturally turn to theinstitution that, at least compared to others, professes the former ideal. I do not mean,of course, that judges are more rational or more skilled at analytic reasoning thantheologians or parliamentarians. We have no guarantee that the political principlesthat our judges deploy will be the right or best ones, or that they will articulate thoseprinciples consistently or coherently; indeed, since our judges disagree amongthemselves, we know that they cannot all be right and that they will not always beconsistent. But the code of their craft promises, at least, that they will try.

Government by adjudication is newly appealing for a different reason as well: itseems better suited than the alternatives to the cultural and ethical pluralism that is somarked in modern political communities and associations. Adjudication is con-structivist rather than oracular: though judges rely, as I have been insisting, on theirown personal moral convictions, they accept an institutional responsibility forintegrity with what other judges have done and will do, which means that the body ofprinciple they together construct, by way of constitutional interpretation, is morelikely to be abstract and less tied to any particular cultural tradition. The politicalrather than ethical character of these principles contributes markedly to that result.

One may find these explanations for the choice of judges as popes much toointellectual. Popular culture, after all, hardly suggests a raging appetite for reasonedexplanation of anything. But we are trying to explain, not an explicit politicalcalculation, but a broad sense of the fittingness of that choice, and we must rememberthat most people, who are wiser about politics than people were before the terrible lastcentury began, have plain reason to reject at least the most natural alternatives to ajudicial papacy. The church as Caesar is no longer an option: we are too divided aboutreligion, and too united in our conviction that religion and State should be separate, topermit that. We know that politicians aim mainly at their next electoral success, andwhile it is sensible to give officials who have that prime ambition the task of benefitingthe majority, it seems less sensible to ask them to be the majoritys conscience as well.



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These strictures and doubts are now also part of popular culture, and they make it notso surprising that people are attracted to the idea of one forum, at least, whereargument matters.

dworkin the judge new role

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