Journal Article

Reframing a debate among Americans: Contextualizing a moral philosophy of law

Olivier Beaud

in International Journal of Constitutional Law

Published on behalf of The New York University School of Law

Volume 7, issue 1, pages 53-68
Published in print January 2009 | ISSN: 1474-2640
Published online January 2009 | e-ISSN: 1474-2659 | DOI: http://dx.doi.org/10.1093/icon/mon037
Reframing a debate among Americans: Contextualizing a moral philosophy of law

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Weighing in on the American debate that may be described as “Waldron versus Dworkin,” this essay challenges the assumption that law and morality are inevitably intertwined. Neither this perspective, nor Jeremy Waldron's vision of judges as “representatives” of society are universal, and, contrary to what is implied in Professor Waldron's essay in this issue, the role of the judge varies considerably depending on the judicial culture. In France, as in much of Europe, it may be argued that judges act, as institutional authorities, in the name of the state. Likewise, the role of the state in the legislative process demands acknowledgment. Waldron's attempt to weigh the respective merits of judicial and legislative decision-making must take into account the fact that, increasingly, legislatures do not make the law; rather, they ratify it, after the groundwork is laid in the offices of ministers and cabinet members.

Journal Article.  7425 words. 

Subjects: Constitutional and Administrative Law ; UK Politics

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