Law's Premises, Law's Promise by Thomas Morawetz

Author:Thomas Morawetz [Morawetz, Thomas]
Language: eng
Format: epub
ISBN: 9781138711303
Goodreads: 39232242
Publisher: Routledge
Published: 2018-12-19T00:00:00+00:00

b. Understanding Other Judges

The picture of law as a deliberative practice, however, tells a different story. If judges also differ in the ways in which they understand evidence and construct arguments, and if they are aware of these differences, then they see their peers as not merely telling inferior stories but as telling characteristically different kinds of stories—political stories, economic stories, psychological stories, and historical stories. This awareness may cause them to hesitate before ranking such differences as superior or inferior and may lead them to a better understanding of why others resist accepting their stories.151

151 I am not arguing, however, that this recognition will undercut or diminish one's own stake in one's way of proceeding, one's justificatory and analytical strategies.

For Dworkin, all judges are in one sense playing by the same rules or strategies since they are deploying the two dimensions of legal analysis: fit and justifiability.152 Judges in a deliberative practice, however, play by different rules and have different modes of arguing, reasoning, and thinking, a fact they understand, anticipate, and respect. This acknowledgement creates a tension between their stakes in their individual strategies and in the multiform practice itself. The first stake is a stake the judge has by virtue of his position as a participant and a decision-maker. The second stake reflects the judge's awareness of the nature of the practice and his participation in it. The voice of the judge simultaneously expresses both stakes.153

152 See supra note 150.

153 The coexistence of these two stakes should not be reduced simply to the degree of modesty of the judge or the degree of respect she has for her colleagues. It is a conceptual matter that the two stakes coexist, regardless of whether the judge is actively thinking about them or not; it is not an empirical matter dependent on the judge's attitude or personality.

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