INTRODUCTION:

The very statement that “moral judgements cannot be proved by evidences” is a true statement, without any sort of doubt with it. The statement is of one of the Central Claims of Analytical positivism given by Hart.

As moral judgements are value judgement, which involves a question of choice between what is posited and if it is posited whether it is rightly applied in to the cases where it is supposed to get applied or not? And whether the idea of attainment of justice, which is one of the most important element is attained or not?

For example, with the question whether bar girls should be allowed to dance at bars or not? Is a question which would be answered on the basis of moral intellect of a person, and is attach to the very idea of what is moral for that particular person? As because if asked whether it is right constitutionally or not, the answer would be based on a priori understanding of that particular person.

And more over where the law is unconstitutional, it does not means that legislatures did that by violating the constitution but the intention of the legislatures was wrong, but there is no attribution of malafide intention in it. For example Sec 37 of the Indian Constitution which claims that- the provisions contained in this part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.

Some of the similar illustrations are Indira Gandhi’s case, which was been declared by the Allahabad High Court as unconstitutional. Similarly the case of bar dancers or girls as it necessarily involves moral judgement, where we have to choose one over the other as the fact is that it is a moral judgement. And Bachchan Singh’s judgement on the question whether death penalty is constitutional or unconstitutional? It is also an example of moral judgement as it involves a lot of pain and struggle by the convict, and on the other side it can also be claimed that the act of convict was so brutal that even if death penalty involves strangulation it must be given to have deterring effect.

For positivists, law is law as it is in a form not because it has some content. Thus, for them black letter law is sufficient to decide upon the matter. And application of black letter law must not involve inductive reasoning. But again a counter statement to this would be though it is right to say that we understand law as it comes in the form, but it does not mean any content. And thus for a judge to decide the case which is falling under Article 21 of the Constitution he will have to necessarily give a premise and then have to put things into it. Thus one of the important idea behind such a thing is that, whatever exists in black and white exists but its application varies for case to case and also upon the person who is adjudicating upon such a matter and upon his a priori understanding of things and also upon his capacity to interpret the things.

And things which exist in black and white as a law is not sufficient, interpretation of those things are of wider importance. Even with regards to the constitution the unwritten basic structure is so crucial that the written part takes its legitimisation from it. And most of which is not written is also law.

Are judges good at morality vis-à-vis Legislators?

My answer to this question would be in affirmative and would like to support my answer through following explanations:-

With regard to the question it can be said that courts through judges are better at moral reasoning than the legislatures as they are been given the final authority with regards to a particular individual or with the minority rights.¹ And more over, it is also contended that the with regards to the reasoning that takes place in the courts specifically Supreme Court, ensures that the most fundamental issues of political morality will be set out properly and would be debated as issues of principle and not political power alone.²

It is not the case that legislatures are wrong per se but the ability with which the courts handle the issue is extra ordinarily sensitive to the issues of moral and political principle latent in these controversies. And with regards to those who raise moral issues about their own or others' rights, the courts offer a forum in which, as Dworkin says, citizens are assured that these claims will be steadily and seriously considered. More so one such ground to be considered here is that legislators are subject to pressures that judges are not, and this must count as a reason for supposing that ... judges are more likely to likely to reach sound conclusions about rights,”³ and according to Joseph Raz, that “there are ample reasons to suspect that members of the legislature are moved by sectarian interests to such a degree that they are not likely even to attempt to establish what rights (some) people have.”⁴

Judges are considered to be good at morality because they reason in the careful, measured, deliberative, and analytic way that moral philosophers think moral reasoners should reason.⁵ They define their terms, they separate different lines of reasoning, they pay attention to the logical force of the arguments they consider, they distinguish issues and discuss them in a certain order, they entertain objections to their own lines of reasoning and try to respond to them, they treat matters of principle as matters of principle and do not try to reduce them into bargaining or electoral politics.

One common notion to be considered between judges and legislators is that with regards to the powers which both of them are given they do it not for their own self but for the whole society.

For example with regards to the issue of abortion, while framing the National Abortion Policy, he has to take up a particular stand keeping in view the large numbers of member in the society, keeping in view their own conclusions with regards to such a sensitive issue and with the conclusion which is been made by his own self.

With regards to the responsibility which the judge have to apply law, which would result in reasonable and high level moral reasoning, it is to be considered that judges have two kinds of task to perform: (a) they must be alert to and familiar with existing legal sources and able to interpret and apply those materials to the cases that come before them; and (b) they must be capable of engaging in moral reasoning about some or all of the issues posed in these cases. Maybe the two tasks can be kept separate so that the judge engages a different quality of reasoning at different times of the day or in different paragraphs of the opinions he writes. Legal positivists have sometimes encouraged this picture. They suggest that the judge operates as a law detector most of the time, though occasionally, when he runs out of law or when the law is indeterminate, he switches to a different role—that of a legislator—and begins making the moral judgments that responsible law-making requires.⁶

Some have suggested that judges often have to switch between applying rules and applying standards, and that the latter task involves moral reasoning in a way that the former task does not.⁷

Versions of what is known as “inclusive positivism”⁸ observe that sometimes the law the judge is supposed to apply actually instructs him to engage in moral reasoning—the Eighth Amendment to the U.S. Constitution instructs him to make judgements about the excessiveness of bail and the cruelty of punishments—and when he is given these instructions to reason morally he has no choice but to obey.⁹

For example, that interpretation X of a statute would lead to an absurd result whereas interpretation Y would not, or that the issue settled in precedent A is relevantly like the issue posed for decision in case B. “Absurdity” and “relevant similarity” are not the most sophisticated moral predicates, but they involve an element of normative judgment that is not itself dictated by what the existing law says.

With regards to the constitutional issues legislators and judges both might have to engage in moral reasoning—legislators much of the time and judges at least some of the time. Moral judgments might be called for on both sides of the institutional divide. Moreover, we hope that legislators will engage in responsible moral reasoning when moral reasoning is required of them. But for cases where the moral reasoning they have engaged in yields conclusions that are at odds with the results of the reasoning that the courts have engaged in, we have to settle on some rule of institutional finality. So the issue concerning the judicial review of legislation presumably is this: the final say on legislation concerning rights should be assigned to whichever institution is better at doing the moral reasoning that thinking about rights often entails. If judges are better at this part of their task than legislators, then judges should keep this as an element in their mission and have the last word on it, even though they also have this other mission of finding and applying the law.

One argument with regards to the distinction which we have made where Judge has to apply the black letter laws simply and where he has to give moral reasoning, it is often contended that even in applying the black letter law moral reasoning is required and it is not completely divorced of morality.

Thus the fact that the Judgement which is been derived of cannot be separated from moral as well as legal reasoning. As the legal reasoning which is been done by us will involve both the aspect in defining terms, distinguishing separate lines of reasoning, addressing issues in a certain order, entertaining and responding to objections, and so forth. And thus the final order would be hybrid of both moral and legal reasoning.

Another view point which support that judges are considered to be morally good at reasoning than legislators is that, even though a judge while giving judgements rely upon various texts and precedents which are also to be considered as having moral considerations. After all, even when they are finding and applying clear law—clear statutes, the clear provisions of a constitution, or clear precedents obviously on point—judges are not machines. They do these things for reasons: there are reasons they regard themselves as bound by statutes or by constitutional texts; and there are reasons for their deference to precedent.

In the final analysis, these are moral reasons—reasons of concern for established expectations, reasons of deference to democratic institutions, and reasons associated with integrity and the moral value of treating like cases alike. So—according to this objection—judges never really leave moral reasoning behind in anything they do, not even in the most technical and legalistic reasoning with which they entangle the more recognizably moral elements of their argumentation. For engaging in that sort of entangled reasoning is also one of the things that morality requires (of persons in their situation).¹⁰

With regards to another issue that does it not make a difference that public officials, like judges and legislators, operate not just on their own account but in the name of a whole society of millions of individuals?

One view might be that this adds an extra burden of responsibility on the decision maker: it makes it all the more important that moral reasoning be conducted well and responsibly. But it might make another kind of difference as well. It may mean that the officials in question have a responsibility to take seriously the views of others in a way that would not apply to individuals making moral decisions on their own account.

In this case with regards to the issue of abortion, there is difference between the views been given by a private person and public official. For example, contemplating the termination of her own pregnancy. I suggested that inasmuch as decision making of the latter kind is very much decision making for oneself, we should not idealize that intensely personal decision making into a model for public reasoning on abortion. But maybe this is a misleading contrast. Perhaps a more appropriate analogy is between the decision of a public official on abortion and the decision of an ordinary citizen contemplating how to vote on the issue (either directly in a referendum or indirectly to the extent that it affects which candidate to vote for). I actually think the reasoning that graces our moral philosophy seminar rooms is more like an idealization of the moral reasoning appropriate for the individual voter than an idealization of the anguished personal decision. The individual voter tries conscientiously to figure out the rights and wrongs of this matter, the values and principles that are involved, and the balancing or trade-offs (if balancing and trade-offs are appropriate) in a reasonably detached way. And it may be that, at its best—and leaving aside the issues discussed under question (1)—moral reasoning by judges more closely resembles an idealization of that than legislators' reasoning does.

More so with this regard We must be sure, then, when we judge the way a given official grapples with such a problem, that we do not apply to the one set of circumstances standards or ideals for moral reasoning that are best suited for the other.¹¹

Thus while considering moral and legal reasoning, it can be clearly seen that the judge's participating in the elaborate construction of a moral argument for, and in the name of, a very large group—his whole society. Instead of following his own moral lights in a single-minded manner, he tries to reconcile what he is disposed to do about the problem that comes before him with what others have done in society's name with problems more or less analogous. Moreover, he does that not just with regard to the bottom line but with regard to every stage and component of his moral reasoning, so that, all the way through, one is conscious that it is not just he who is disposing morally of this case. To use a phrase of Dworkin's, the judge does not see it as his task “to plant the flag of his [own moral] convictions over as large a domain of power or rules as possible.”¹² The litigants who come before him should not expect him to reason about their problem as though from a moral tabula rasa; they come to him for society's disposition of their problem. They should welcome, therefore, the introduction into his reasoning of elements of earlier social decisions by other judges and other officials and not regard that as an affront to the autonomy of morality or justice. Not that the judge simply plunks down a bunch of texts and precedents. He weaves them into an argument that he gives in his own voice and for which he takes responsibility. But he offers his argument not in the spirit of “Here's what I would do, morally, if I ruled the world” but, rather, “Here's the best way I can see of disposing properly of this case in a way that keeps faith with how other people in this society have been treated in similar circumstances.” Judges are very good at doing this sort of thing. Legislators are not, not that they often try.

The second-reading debate in the House of Commons debates in Britain on the Medical Termination of Pregnancy Bill in 1966 is as fine an example of a political institution grappling, freshly and directly, with moral issues as you could hope to find. They debated the questions passionately but also thoroughly and honourably, with attention to the rights, principles, and pragmatic issues on both sides. Issue with regards to the moral importance of reproductive rights in relation to privacy, and the few paragraphs addressed to the other moral issue at stake—the rights status of the fetus—are mostly taken up with showing the diversity of opinions on the issue.

With regards to the issue related to the individual rights in the light of moral reasoning in the name of whole society, generally what is found is that these issues are already supposed to be covered by the provisions of a written constitution (a bill of rights), and so they should be treated as legal issues and reasoned about in the way that courts are best at reasoning. We should deal with these matters by way of reference to texts and precedents embodying what our society have already committed itself to in this area. Such reasoning will still be quasi moral in character. But it will not be moral in the sense of taking a fresh look at the subject; it will be moral in trying to reconcile, in a morally sensitive way, what we think about the subject now with what has been thought about it in this society in the past. Such reasoning, with all its legalisms, texts, case analysis, and so on, may not look much like moral reasoning, but, as we have seen, we should not judge it by the standards of individual moral reasoning, and we should not judge it by the standards of reasoning legislatively in the name of a whole society.

With regards to the issue of rights We identify certain areas for decision as issues of rights because of the importance of what is actually—not textually—at stake; and it is not appropriate to have that sense of importance skewed by particular formulations, such as “substantive due process” in the case of abortion, for example, or “cruel and unusual” in the case of questions about capital punishment. To figure out the issues of rights that are implicated, here, we need to be open to arguments of all sorts. Just because the issues involved are arguably issues of rights, our ultimate decisions about them should not be at the mercy of theories of interpretation or the laboured concoction of analogies. The issues are too important for that.

With regards to the legislative style of legal reasoning if is been adopted by the legislature then it would be really useful or helpful as it would help us to address the issue freshly and directly on their moral merits, undistracted by legalisms and that they might turn out to be better at it than legislatures are. But then this is also doubted at as it is a lot of expectation from what legislatures actually are and moreover courts have little experience of this sort of moral reasoning, and their own (justified) qualms about the legitimacy of their engaging in it are likely to distort the way they conduct themselves.¹³ And more so courts also have very few members to ensure that all points of the legislative model are been taken care of. And the functioning of the court and the legislature vary a lot even if the most ideal way or method is adopted. And the overall conclusion is that Judges are good at moral reasoning.

REFERENCES:

1. Jeremy Waldron, the Core of the Case against Judicial Review, 115 YALE L.J. 1346, 1386-1395 (2006).

2. Ronald Dworkin, A Matter of Principle 70 (Harvard Univ. Press 1985).

3. Supra note 2

4. Joseph Raz, Disagreement in Politics, 43 Am. J. juris. 25, 46 (1998).

5. John Rawls, Outline of a Decision-Procedure for Ethics (1951)

6. H. L. A. Hart, (The Concept of Law) 135 (rev. ed., Oxford Univ. Press 1994) .

7. See Emily Sherwin, Rule-Oriented Realism, 103 Michigan L. Rev. 1578, 1591 (2005)

8. See W. J. Waluchow, Inclusive Legal Positivism 81-82 (Oxford Univ. Press 1994).

9. See Ronald Dworkin, Freedom's Law: The moral reading of the American constitution (Harvard Univ. Press 1996).

10. Ibid.

11. Jackson v. Bullock, 12 Conn. 39 (1837), Bissell J. dissenting— cited by Robert Cover, Justice Accused: Antislavery and The Judicial Process 120 (Yale Univ. Press 1975).

12. Elucidated most clearly in Ronald Dworkin, “Law's Empire” (Harvard Univ. Press 1986).

13. See Waldron supra note 1

Received on 10.05.2014 Modified on 28.05.2014

Int. J. Rev. & Res. Social Sci. 2(2): April-June 2014; Page 114-117