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Journal of International Criminal Justice 1, 1 Oxford University Press, 2003.

All rights reserved

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The Judges New Role:

Should Personal Convictions
Count?
Ronald Dworkin*

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.

In this paper I propose three questions about the contemporary role of judges in
announcing, interpreting and enforcing the basic principles of justice and democracy.
(1) Is there any way that judges playing that role can avoid relying on their own
personal moral convictions, which may be different from those of most of their fellow
citizens, and in any case will vary from judge to judge? (2) If not, is this judicial role
objectionable? (3) Such authority is indeed thought unjustified by many critics, and
judges characteristically deny that that they rely on their own personal moral
convictions in exercising it. Why, then, have so many democracies emerging as well
as mature adopted constitutions that inevitably give judges the power that the critics
deplore and the judges strain to deny that they have?

Sommer Professor of Law and Philosophy at New York University and Quain Professor of Jurisprudence
at University College, London.

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The Judges New Role

1. The Increasing Impact of Moral Pronouncement in the

Judicial Arguments of Constitutional and International
Judges
I know that many non-lawyers (and even some law professors, lawyers and judges)
think that law is wholly independent of morality, and that judges who appeal to moral
principles or ideals to support their decisions are trespassing on the roles of priests,
statesmen and moralizers, and violating their responsibilities to decide cases
according to what the law is, not what it should be. That positivist canon was never
defensible nor, perhaps, would any of us here defend it. It was not true even when the
highest courts of modern democracies were occupied almost entirely with enforcing
codes or statutes or applying the precedent decisions of the common law to new
situations. The strict positivistic sources of law had fuzzy boundaries and left gaps;
these had to be sharpened or filled in with interpretation, and interpretation requires
judges to decide which way of continuing the story that the legislature or other judges
have begun is the most satisfactory all things considered. That is a judgment that is
moral at its core.
In the decades after World War II, more and more of these democracies gave judges
new and except in the United States unprecedented powers to review the acts of
administrative agencies and officials under broad doctrines of reasonableness, natural
justice and proportionality, and then even more surprising powers to review the
enactments of legislatures to determine whether the legislatures had violated the
rights of individual citizens laid down in international treaties and domestic
constitutions. The impact of moral pronouncement on judicial argument thus became
much more evident and pronounced. In recent years international courts of different
kinds, including international constitutional courts like the European Court of
Human Rights, have become progressively more important, and the role and powers
of judges have therefore acquired yet a further dimension.
The new role is different from the traditional one in three interconnected ways.
First, the need for judges to confront moral issues is more pervasive in general
administrative regulation, and much more pervasive in constitutional and international adjudication, than it is in either ordinary statutory interpretation or
common law development. The law of crime, property, contract, commerce and
personal injury can indeed must be structured by technical rules whose
operation can be predicted with reasonable confidence by homeowners, testators,
business men and insurance companies. Of course these technical rules raise deep
issues of fairness and personal responsibility, and such issues are the heart of the
matter when judges decide novel cases at the boundaries of the rules, and when they
undertake some needed reorganization or reform of them. But the visible impact of
judicial moralizing is often small in such cases. The role of moral judgment is pervasive
and undeniable in administrative regulation, on the other hand, because the
standards of that task are themselves set out in moral language the language of
convenience and necessity, or reasonableness, or proportionality, for example and
because it requires judges to choose among contested conceptions of economic and

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administrative efficiency, and to fix an interaction and balance between efficiency and
other moral values.
The role of moral judgment is still more pervasive and less deniable in constitutional
adjudication, because the pertinent constitutional standards are even more explicitly
moral: they declare rights of free expression, treatment as equals, and respect for life
and dignity, and sometimes make exceptions for constraints necessary in a
democratic society, for example. In ordinary code or statutory interpretation, and in
common law adjudication, novel or otherwise testing cases are hard most often
because they lie at the boundaries of what is settled. In constitutional adjudication, on
the other hand, cases are often hard not because they lie at the borders of doctrine, but
because they call for a fresh understanding of the most basic underlying grounds of
doctrine. The question whether the right of free expression, properly understood,
protects hate speech or speech insulting or offensive to persecuted minorities, for
instance, or whether some prohibition of such speech is necessary in a genuinely
democratic society, requires reflection on some of the deepest issues of political
morality on the reason why free speech should be protected and on the best
conception of democracy. Many examples can be found in international adjudication.
Article 3 of the European Convention on Human Rights, for example, provides that
No one shall be subjected to torture or to inhuman or degrading treatment or
punishment, and in 1999 the European Court made plain that its members were
required to decide, as a contemporary issue of political morality, whether certain
forms of treatment that were not regarded as torture in the past must be treated that
way now.1 Of course, practice and precedent will shape (in different ways in different
jurisdictions) how any particular judge must reflect on those issues. But, particularly
in the formative period of a nations (or a continents) constitutional law, precedent
and practice will be thin and, in any case, the question how and to what degree a
judges moral reflection on constitutional issues should be shaped by practice or
precedent is itself a deep and contested question of political morality, as I shall shortly
emphasize.
Second, the moral issues that constitutional judges face are often the most
controversial and divisive in the community. Ordinary adjudication raises moral
issues, as I said, but these are rarely issues that are subjects of wider public notice or
disagreement. Whether it is right that a murderer inherit property from his victim, or
fair that someone whose negligence has caused gigantic damage should bear the
entire financial responsibility, are not matters of great public concern or attention,
and if they were to become so they would probably not generate violent controversy.
But the moral issues that figure in constitutional adjudication are the most divisive
1

See Selmouni v. France (28 July 1999). See in particular 101, where the Court stated that having
regard to the fact that the Constitution is a living instrument which must be interpreted in the light of
present-day conditions . . . the Court considers that certain acts which were classified in the past as
inhuman and degrading treatment as opposed to torture could be classified differently in future. It
takes the view that the increasingly high standards being required in the area of the protection of
human rights and fundamental liberties correspondingly and inevitably require greater firmness in
assessing breaches of the fundamental values of democratic societies.

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The Judges New Role

possible: in the United States they include questions about abortion and euthanasia,
about racial and other forms of discrimination, about whether government may
favour disadvantaged minorities, and about whether prayers may be said in public
schools or at college football games. The notoriety of these moral issues guarantees
that the judicial role in deciding them will itself become a matter of public attention
and at least occasional hostility.
Third, the moral issues at the heart of both administrative and constitutional
adjudication are largely matters of political morality rather than individual ethics.
The issues of fairness that occupy ordinary adjudication are matters of how
individuals should treat one another in business, or in creating risk and compensating
for damage, for example. But the issues for judges in constitutional cases are about
how government should or may treat its citizens. When a constitutional court
considers how far government may make abortion or euthanasia a crime, it is not
considering at least not directly whether these practices are wicked or immoral. It
is considering whether government may properly decide those questions for everyone
subject to its power, or whether it must rather allow individuals to judge the ethics of
abortion or suicide for themselves. (The public is often careless about that distinction:
many people believe that the United States Supreme Court has decided that abortion is
morally permissible and that assisted suicide is morally wrong.) Of course, there are
complex interconnections between issues of individual ethics and of political morality
whether government may properly prohibit abortion depends crucially, for
example, on whether abortion is the murder of a human creature with interests of its
own. But the central moral issues of constitutional adjudication are nevertheless
political not individual.
The prominence of moral issues in constitutional adjudication has made judges into
public figures, particularly in the United States, but also, to a growing degree, in other
countries. Even in Britain, which has only just decided (in effect) to bring the
European Convention on Human Rights into its domestic law, and thus to give the
powers and responsibilities I have been discussing to judges, the background and
political stance of individual members of the Judicial House of Lords is already
beginning to attract attention. (New Law Lords will be appointed soon, and the
question of who will be appointed is receiving much more attention than such
promotions used to attract.) The new attention (in the United States the long-standing
attention) is very often, and sometimes fiercely, critical. It is widely thought that there
is something wrong with judges pontificating about controversial matters of ethics
and political morality. Even sophisticated lawyers and judges who accept that judges
must necessarily weave moral judgments into their arguments seem embarrassed by
that fact, and they are dogged in their insistence that judges need not and should not
invoke what is often called their own personal morality. Much ingenious argument
has been devoted to attempting to show why and how judges can avoid or at least
substantially reduce any reliance on their own personal convictions about the moral
issues in play.
It is understandable that the lay and professional public and the judges themselves
are anxious to insist that when judges decide whether their countries may ban

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abortion, or authorize their police to terrorize terrorists, or prevent the publication of

racially inflammatory or insensitive literature, these judges are not simply imposing
their own personal moral convictions, which may be idiosyncratic, on the multitude
of their fellow citizens. It seems undemocratic that such fundamental issues should be
decided by a small group of appointed officials who cannot be turned out of office by
popular will. Judges disagree about political morality among themselves, moreover,
and it also seems unfair that important decisions should turn on which panel of judges
was sitting at the time, particularly since judicial appointments are often matters of
politics and even luck rather than a solemn assessment of merit. So the most
responsible lawyers and judges emphasize, whenever they can, that when judges
deliberate about matters of moral dimension they are not (or at least not usually or
often) relying on their own personal moral convictions. They say that the judges are
relying on something else: the morality of the community as a whole, for example, or
the principles embedded in the nations history. Or that they need not rely on fresh
moral judgments at all, because except in particularly outrageous cases they can and
should defer to the judgment of other officials the domestic legislature or some
international body or assembly, for example. It seems unlikely that any lawyer who
stated that when moral judgment is necessary he would rely on his own personal
convictions would find himself appointed to a constitutional court.
Nevertheless our judges assurances that they do not rely on their own personal
morality, however honest, are delusional: they gain whatever plausibility they have
because the convictions on which constitutional judges rely are almost always, as I
said, distinctly political convictions rather than the kind of ethical judgment that most
people think of as moral. Consider the popular opinion I mentioned: that when judges
define some constitutional right by deciding, for example, whether freedom of
expression includes the right to defame a minority religion or race they should defer,
except in truly shocking cases, to the judgment of a legislature or other elected body. If
a national legislature has decided that the constitutional right of free expression does
not extend that far, or that an exception condemning hate speech is necessary or
permissible in a democratic society, then judges should not substitute their own
contrary personal convictions. In that way (it is said) judges can avoid simply
enforcing their own personal morality. But that is an evident mistake, for these judges
are certainly enforcing their own convictions of political morality their own
conceptions of how decisions should be made in a genuine democracy and these
convictions are as much moral, and as much controversial among judges, as the more
directly substantive opinions that they claim to have set aside.
Judges who appeal to history or to the supposed morality of the community as a
whole are also plainly relying on their own controversial political convictions, in two
ways. First, these judges have embraced the surely controversial conviction that
history or popular opinion should govern what rights individuals have. Second, since
there will inevitably be a wide variety of different competing interpretations of the
communitys history respecting free speech, or of what opinion about free speech is
the view of the contemporary community as a whole when individual citizens
disagree, an interpreter must rely on his own sense of the point of free speech and the

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The Judges New Role

correct understanding of the democratic ideal in order to decide which of these

competing interpretations is best. The role of a judges own convictions of justice and
fairness may be more obscure in such decisions than it is when he speaks directly
about the morality or immorality of abortion, for example. But it is no less decisive.
True, opinions about the character of democracy are not often debated, or even
recognized, by the general public, so that judges who declare for one or another
conception of democracy are not taking sides on hotly contested public issues. But if
the public came to understand the importance of such abstract issues of political
morality for the more substantive issues they do care about if they came to
understand the consequences of one or another view for a courts decisions about race
relations, for example, as Americans did in the course of a recent bitterly contested
Supreme Court nomination then the abstract issues would become instantly more
controversial for that reason.
The educational and professional background of most constitutional judges in our
countries, and the methods by which they are selected, tend to insure that, at least for
the most part, their personal convictions are not eccentric that they fall (in an
expression popular in America) within the mainstream of popular opinion. There
have been times (I believe one such time is now in the United States) when history
produces a group of constitutional judges whose political morality is in important
respects radical by conventional standards. Even then, the opinions of the nonmainstream judges reflect an important even if not a dominant segment of opinion.
These political realities no doubt contribute to the felt legitimacy of judicial review.
But the constraints they impose are de facto, not normative: a judges convictions are
none the less personal because they are likely to be popular, or at least not too
unpopular.

2. Is it Undemocratic to Let Judges Have the Final Decision

on Large Moral Issues?
So there is no bedrock of interpersonal consensus or institutional allocation of power
or historical fact on which a constitutional judge can rely in place of expressing his or
her own personal convictions of political morality. Every decision a judge makes
enforcing the broad moral provisions of a constitution to new issues demands the
exercise of his own judgment of substantive justice or his own understanding of what
a fair distribution of political power requires. This fact raises issues of legitimacy that
are much chewed over in American constitutional theory, but fresher in Europe. Is it
undemocratic for judges to have what is in effect the final decision over large moral
issues?
We might consider three responses to that question. The first points out that most
people in the nations in which judges have been given that responsibility do not object
to it, and from time to time, in different ways, endorse it. But though this states
another important political fact, it is not satisfactory as a full answer, because the final
question must be not what the people do accept but what they do right to accept. If

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judicial review means an abdication of the peoples democratic right to govern

themselves, then that abdication might be wrong even though voluntary. And, of
course, not everyone believes that government by judiciary is acceptable: many
people think it deeply wrong.
The second response concedes that, at least according to the standard definition of
democracy as majority rule, it is undemocratic for judges to have the powers I have
been describing. But it insists that democracy compromised in that way is a better
form of government than a purer form of democracy because the former produces a
more just community by protecting the rights of minorities. That is a popular view,
but once again I find it unsatisfactory. Democracy is the name not just of one type of
political arrangement, but of an important political value. It stands for equality in the
distribution of political power for self-government in that distinct and special sense
and if we concede a compromise of political equality we concede something important
and regrettable. How can we be confident that the result of that compromise is greater
justice if the compromise is itself a deep injustice? We do better to take the challenge
more seriously: instead of asking simply whether some judicial power is undemocratic
according to one traditional understanding of what democracy is, we must ask
whether it is undemocratic according to the best understanding of that ideal.
The third response, which is more ambitious than the other two, undertakes that
task. Once we notice that the traditional majoritarian conception of democracy is only
one among several such conceptions that philosophers have identified and discussed,
then we are likely to reject that majoritarian conception, because there is nothing
inherently fair, and nothing that provides genuine self-government for all, simply in
the fact that more people favour one decision than favour another. Majority rule is fair
only when certain conditions are met only, for example, when people have a
genuine and equal right to participate in the public argument that produces the
majority decision, and only when issues of distinct importance to individuals, like the
choice of religious commitment, are exempt from majoritarian dictate altogether. If
we understand democracy to mean not majority rule in itself, but majority rule under
appropriate conditions, then it does not compromise but rather protects democracy
when effective means are deployed to secure those conditions. It therefore begs the
crucial question to say that judicial power undermines democracy: we must look to
see whether the consequence of that power is in fact greater democracy because it has
helped to achieve a more genuine realization of the conditions that genuine
democracy requires. Of course, judicial review of legislation is not the only means that
a society may choose to attempt to secure those conditions. I shall shortly discuss
another means that was formerly thought superior in most mature democracies:
parliamentary conscience and restraint. My claim now is only that whether judicial
review is undemocratic is a substantive not an institutional question: we must look, at
retail, to the particular constitutional provisions that judges enforce in particular
jurisdictions, and to how they enforce them, to see whether, all things considered,
democracy is improved or worsened by that feature of the societys political
arrangements.

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3. Government by Adjudication, or Judges as Popes

The role now played by judges wielding power in service of conscience was once
played by priests and then later by politicians. These were shifts not just in personnel
but in moral epistemology as well. Priests ruled by divination from the occult, as they
still do, for example, in Iran. Democratic politicians now rule, not by the instinctive
wisdom and fairness celebrated in the old parliamentary model, but by representation,
which means by compromises, trade-offs and political deals that do not even aim at
coherence. Neither priests nor politicians have a responsibility of justification in
principle, of capturing all that they do in more general formulations of right and
wrong. Any such responsibility would undermine the emotional base of priesthood,
which is mystery, or cripple the accommodating and pragmatic strategies of
politicians.
But that responsibility for articulation is the nerve of adjudication. Judges are
supposed to do nothing that they cannot justify in principle, and to appeal only to
principles that they thereby undertake to respect in other contexts as well. People
yearning for reasoning rather than faith or compromise would naturally turn to the
institution that, at least compared to others, professes the former ideal. I do not mean,
of course, that judges are more rational or more skilled at analytic reasoning than
theologians or parliamentarians. We have no guarantee that the political principles
that our judges deploy will be the right or best ones, or that they will articulate those
principles consistently or coherently; indeed, since our judges disagree among
themselves, we know that they cannot all be right and that they will not always be
consistent. But the code of their craft promises, at least, that they will try.
Government by adjudication is newly appealing for a different reason as well: it
seems better suited than the alternatives to the cultural and ethical pluralism that is so
marked in modern political communities and associations. Adjudication is constructivist rather than oracular: though judges rely, as I have been insisting, on their
own personal moral convictions, they accept an institutional responsibility for
integrity with what other judges have done and will do, which means that the body of
principle they together construct, by way of constitutional interpretation, is more
likely to be abstract and less tied to any particular cultural tradition. The political
rather than ethical character of these principles contributes markedly to that result.
One may find these explanations for the choice of judges as popes much too
intellectual. Popular culture, after all, hardly suggests a raging appetite for reasoned
explanation of anything. But we are trying to explain, not an explicit political
calculation, but a broad sense of the fittingness of that choice, and we must remember
that most people, who are wiser about politics than people were before the terrible last
century began, have plain reason to reject at least the most natural alternatives to a
judicial papacy. The church as Caesar is no longer an option: we are too divided about
religion, and too united in our conviction that religion and State should be separate, to
permit that. We know that politicians aim mainly at their next electoral success, and
while it is sensible to give officials who have that prime ambition the task of benefiting
the majority, it seems less sensible to ask them to be the majoritys conscience as well.

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These strictures and doubts are now also part of popular culture, and they make it not
so surprising that people are attracted to the idea of one forum, at least, where
argument matters.

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