Democracy, Interpretation and Moral Conflict (Departmental Seminar)

Abstract:

Judges in democracies face moral conflicts where, through no fault of their own, they must choose between courses of action each of which transgresses against the democratic ideal – or so I will argue. In mature democracies, the democratic assembly makes law which is then interpreted and applied by independent courts. In this undertaking the judges should, we say, uphold the democratic ideal as a standard of political morality – meaning, roughly, that judges should give effect to all the assembly’s enactments, and arrive at interpretations in conformity with legislative intent. It is hard to overstate how dearly modern judges present their commitment to the democratic ideal. Yet circumstances will arise where, in trying to make sense of the assembly’s unruly enactments, the only courses of action available to the judge involve transgressing against the democratic ideal. Whichever course is chosen the judge will fail morally. I consider the importance of recognising this, including with regard to the appropriate reaction of an agent who faces such morally conflicted choices, as well as for our broader understanding of judges in democracies.

Delivered in English.
All are welcome.