The Judge's New Role: Should Personal Convictions Count?

Abstract

In the decades following the Second World War, for a number of reasons constitutional and international judges have increasingly confronted and pronounced upon moral issues for the purpose of interpreting basic principles of justice and democracy. In so doing, they have inevitably grounded their decisions in their own moral convictions. However, as personal convictions vary from judge to judge, the development at issue poses the question whether this new role of judges is consonant with the principles of justice and democracy. The author argues that it is. Judges are supposed both to do nothing that they cannot justify in principle, and to appeal only to principles they undertake to respect in other contexts. Furthermore, government by adjudication is better suited to the present cultural and ethical pluralism than are other possible alternatives.

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