Cardozo Law Review
Abstract
Can the judiciary exercise its authority to interpret the law without committing itself to particular, substantive views of the Good? If not, can law maintain its legitimacy in a democratic society when this legitimacy rests on the state's democratic claim to neutrality vis-i-vis the competing moral visions of its citizens? The fear addressed by these questions-the familiar "counter-majoritarian difficulty"-is that unelected judges will irresponsibly impose their individual moral preferences on an unwilling citizenry. The traditional answer is that interpretation requires no recourse to moral or ethical judgment, because case outcomes may be rationally determined from precedent and other authoritative legal texts. To the extent these authorities fall short, any remaining interpretive space may be filled by values rationally extracted ("read") from the legal tradition as a whole.
Disciplines
Education Law | Jurisprudence | Law
Recommended Citation
Adam Thurschwell,
On the Threshold of Ethics,
15
Cardozo L. Rev.
1607
(1994).
Available at:
https://larc.cardozo.yu.edu/clr/vol15/iss5/8