Document Type

Working Paper

Publication Date

8-8-2009

SSRN Discipline

Legal Scholarship Network; Entrepreneurship Research & Policy Network; Law School Research Papers - Legal Studies; Corporate Governance Network; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Health Economics Network

Abstract

This Essay forthcoming in Constitutional Commentary discusses three recent books about judicial decision making Richard A Posners How Judges Think H Jefferson Powells Constitutional Conscience The Moral Dimension of Judicial Decision and Daniel A Farber and Suzanna Sherrys Judgment Calls Principle and Politics in Constitutional Law It uses them as the foundation for an exploration of the nature and role of judicial character or judicial virtue in constitutional judging All three books have in common the rejection of any single comprehensive theory of or approach to constitutional judging What divides them is the extent to which they focus descriptively on the is of judging or normatively on the ought of judging here Posner and Powell represent the respective poles with Farber and Sherry located somewhat awkwardly in the middle I argue that in order for us to find some livable space between the is and the ought we must take the aretaic turn we must focus on the nature of judicial character or virtue and what it demands of the judge Drawing on work on virtue ethics and virtue jurisprudence I explore the role of judicial virtue and its relationship to constitutional decision making I argue that the aretaic turn may help us to develop an understanding of judging that is both consistent with the judicial is and productive of new ways of thinking about the judicial ought In particular I argue that reflection on the meaning and implications of the judicial oath may provide a fertile space in which to recapture and reconceive a normative sense of the judicial virtues without neglecting the realworld motivations and limitations that act on judges This Essay is a prelude to larger work on the relationship between oaths and the Constitution

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