Two Conceptions of Judicial Integrity: Traditional and Perfectionist Approaches to Issues of Morality and Social Justice

Evelyn Keyes, Two Conceptions of Judicial Integrity: Traditional and Perfectionist Approaches to Issues of Morality and Social Justice, 22 Notre Dame J.L. Ethics & Pub. Pol’y 233 (2008)

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Two radically different conceptions of judicial integrity in resolving cases that present controversial moral issues of liberty and equality have vied for preeminence in American jurisprudence for half a century. Traditional jurists contend that the positive law is itself systemically moral and that judges can and should decide all cases–including those that present controversial moral issues of liberty and equality–within the constraints of the standards, rules, and precedents in the positive law. Jurists who adopt Ronald Dworkin’s perfectionist view of “law as integrity” contend that the Equal Protection Clause and Due Process Clause in the Fourteenth Amendment incorporate comprehensive abstract moral principles of liberty and equality to which the positive law should, but often does not, conform; that judicial opinions based solely on the “conventional” sources in the positive law are merely “backward looking factual reports” that cannot resolve the novel and controversial moral issues presented by legal cases; that it is, in any event, a “category mistake” for judges to resolve moral issues by non-moral techniques; and that judges should, therefore, read the Constitution “morally,” i.e., they should construe the principles of liberty and equality in the Constitution in accordance with the community’s best construction of the moral requirements of decency and fairness and should implement the true democratic conditions of liberty and equality.

In this paper, I take up Dworkin’s perfectionist challenge to traditional jurisprudence from a new perspective. I argue that, contrary to Dworkin’s assertions, the positive law is not a fortuitously moral set of backward-looking factual reports; nor is traditional jurisprudence inadequate to resolve constitutional issues of liberty and equality . . .