A well-known legal philosopher made the following comment to me a few times over the last few months (paraphrasing a bit):
“According to almost everyone, every legal philosopher, law professor, and judge, it is impossible to reach a decision in all cases without referring back to your own personal morality and political morality.”
This does not mean that it is impossible to decide what the law is without referring to your own morality. There is great disagreement about that (that is the schism between positivists and non-positivists / Dworkinians). Rather, the point is that all legal rules are universal and general, many with vague language and/or (possibly) indeterminate language. There are “hard cases” that come before judges. On the positivist account, there are “gaps” in the law, and the judge most fill in these gaps by assuming a legislative-type role. This is judicial discretion. According to Raz, a judge has a duty to fill in these gaps in the best possible way. Dworkin, on the other hand, claims that these hard cases do not represent gaps in the law, they are just hard cases, where a judge must do what she always does: engage in an interpretive enterprise. The judge must select the rule that best “fits” the prevailing legal landscape and provides the “best justification” for the law. On his account, whatever rule that satisfies this two-part interpretive test actually is the law.
Leaving this debate aside, what interests me is the fact that both the positivists and non-positivists agree on what a judge must do: refer back to their own beliefs moral/political beliefs. What is interesting is that every potential federal judge and potential Supreme Court justice says exactly the opposite in their confirmation hearings. “The judge’s job is to apply the law. The judge is not to consult her own personal morality.” What are we to make of this? Barry Bonds and Roger Clemens, as well as countless others, are prosecuted for lying to authorities, Roger Clemens specifically for lying to a Congressional committee. Why do judges get a free pass? This is especially interesting considering the existence of demanding legal and judicial ethical codes that require truthfulness in court, etc. What gives?