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dc.contributor.authorSADURSKI, Wojciech
dc.date.accessioned2011-05-23T13:39:41Z
dc.date.available2011-05-23T13:39:41Z
dc.date.issued2009
dc.identifier.citationInternational journal of constitutional law, 2009, 7, 1, 25-45
dc.identifier.issn1474-2640
dc.identifier.urihttp://hdl.handle.net/1814/17354
dc.description.abstractBoth defenders and critics of judicial review assume that a special moral capacity is needed for a correct articulation of constitutional rights, although they disagree about who is likely to possess this moral capacity to a greater degree. In this comment I challenge such an assumption. Reasoning that is oriented toward rights articulation is not 'more moral' than non-rights-oriented authoritative public decision making. Rights-related reasoning cannot be shown to be 'differently moral' in order to justify why some political actors-such as judges-may be better suited to performing this particular type of moral reasoning than others-such as legislators. The best argument for such a distinction hinges on the opportunity an actor may have to conduct 'moral thought experiments,' which is what judges, as part of their professional duties, normally do. But there is no justification for believing that such 'experiments,' triggered by specific, factual situations, should be privileged, as a method of moral reasoning, over abstract, principle-based reasoning. If anything, a good case can be made for deliberately abstracting from specific cases and focusing on the general, along the lines of a Rawlsian 'reflective equilibrium.'
dc.language.isoen
dc.subjectJudicial review
dc.subjectMorality
dc.subjectRights
dc.subjectDecision making
dc.subjectPolitical actors
dc.subjectJudges
dc.subjectParliamentarians
dc.subjectReasoning
dc.titleRights and moral reasoning: an unstated assumption - a comment on Jeremy Waldron's 'judges as moral reasoners'
dc.typeArticle
dc.identifier.doi10.1093/icon/mon033
dc.identifier.volume7
dc.identifier.startpage25
dc.identifier.endpage45
eui.subscribe.skiptrue
dc.identifier.issue1


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