Justice and Fairness in Law's Empire

Abstract

Two important themes in Ronald Dworkin's work have contributed much to an understanding of Anglo-American law. He has insisted on the inter-connection between law and morality, emphasising the role of the judge's political morality in his judgments about the law. He has also argued that individual rights should be understood as anti-utilitarian or anti-majoritarian in character: they operate as constraints on majority decisions about the public interest or general welfare. In combination, these theories have provided an explanation of the legitimacy, in a democracy, of leaving undeniably “political” questions to unelected judges. Judges determine legal rights by applying (legal and political) principle. Matters of policy—understood as raising questions of the general welfare or the public interest— are primarily the concern of the other branches of government. Though policy questions are of concern to judges in the context of statutory construction, where the courts must decide what the legislature has in its wisdom enacted, it is their creative and evaluative role in respect of principle—concerning the moral and legal rights of individuals—which is the hallmark of adjudication, properly understood.1