Newsgroups: bit.listserv.politics
Date:         Fri, 11 Sep 1992 16:43:16 EDT
From:         Jamie <PL436000@BROWNVM.BITNET>
Subject:      Re: KAT is bad if and only if Jimbo is harmful

>From:         rf35 <Richard_A_FYFE@UMAIL.UMD.EDU>

>> I should have appreciated the distinction in Richard's post-
>> ings, because it is one that pops up unnoticed in the theory
>> of judicial review, which I've been thinking about recently.
>
>        Tell me if this might be what you've been thinking about.
>There are those who argue that the judge should never make moral
>judgments in deciding a case, that instead he should apply the
>law as written in making a judgment.  This is to be distinguished
>from "judicial activism," where the judge appeals to moral prin-
>ciples in deciding a case.

Bingo.

In particular, the following sort of objection is often leveled
against a certain kind of theory of judicial review. "That theory
tells a judge to use moral values to interpret the law. But since
there is no publicly accepted methodology for determining which
moral values are correct, the advice is in effect to have judges
impose their own values on the American people, putting them above
the democratically chosen ones."

The objection fails to distinguish between two different ways
in which a theory might "inject values" into judicial review.
One way is for the theory to tell the judge, "Use whichever values
you think are right to interpret the law." The other way is to
tell the judge explicitly how to interpret the law, giving a
strategy that admittedly relies on an evaluative argument for its
justification, but does not leave any evaluative judgments to
be made on the spot by the judge.

I think it might be proper to object to the first kind of advice.
But it is very difficult to find any actual examples of that kind.
It cannot possibly be sensible to object to the second kind of
advice, because ANY theory of how to interpret the Constitution
will rely for its justification on controversial evaluative
premises.
The distinction has not generally been appreciated, nor has
the peculiarity of that kind of objection.

Ref's available on request....

>        However, one can question from where comes this "obli-
>gation" to apply the law as written.  It is not a legal obliga-
>tion; it is highly unlikely that the judge who does not apply
>the law as written in hard cases is going to suffer criminal
>charges as a result (except in extreme cases).  It seems to make
>more sense to say that the obligation to apply the law as written
>is a moral obligation.  But then this involves an appeal to a
>moral principle in deciding the case.

There probably is a legal obligation for a judge to apply
the law "as written." I would say that what is at issue is
slightly different. In some sorts of cases, to apply the
law as written may require an evaluative judgment, a moral
one. For example, the law might use the term "harm," which
we now all know is value-laden. In that case, it will be
a controversial moral question exactly how one would apply
the law as written.

>        What we have is not a dispute between whether to make
>moral appeals in deciding a case, but a dispute between which
>moral obligations are valid with respect to deciding a case.

I certainly agree that we always have that sort of dispute. For
example, suppose one decided that the law as written would,
if enforced, amount to a serious violation of someone's moral
rights. (Many people believe that's what happened in the
cases of fugitive slaves--they had to be returned to their
"owners," by law.) One doesn't avoid the moral question
by pointing to the legal question, one only complicates it.
It is quite conceivable, understandable, and maybe commendable,
for a judge to decide not to enforce the law as written,
for sound moral reasons.

Jamie
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