Abstract

Both the defenders and critics of judicial review assume tacitly that there is a special moral capacity needed for a correct articulation of constitutional (explicit or implied) rights, and they only disagree about who is likely to possess this moral capacity to a higher degree. In this working paper I challenge this unstated assumption. It is not the case that the reasoning oriented towards rights articulation is more moral than many non-rights-oriented authoritative public decisions in the society. Further, I suggest that rights-related reasoning cannot be shown to be differently moral in a way which would support the idea that this relevant difference may justify why some political agents (such as judges) may be more suited to performing this particular type of moral reasoning than others (such as legislators). The best argument for such a distinction refers to the opportunity for and habit of conducting "moral thought experiments" which is what, as part of their professional duties, judges normally do, and which they can therefore instinctively do also when they engage in a "concrete" judicial review of a statute. But there is no good moral reason to believe that "moral thought experiments" triggered by specific fact-situations should be privileged as a method of moral reasoning, compared to an unashamedly abstract, principle-based moral reasoning. If anything, a good case may be made (referring to the need to openly acknowledge moral conflict, secure impartiality, equality and legitimacy) for deliberately abstracting from specific cases and focusing on the abstract and general level, only modifying it later, if one is compelled to such modifications by considering evidence from specific instances. Not even one half (the bottom-up half) of the Rawlsian famous "reflective equilibrium" apparatus can be of help in this regard.