Wednesday, March 5, 2014
Tom's comparison of judicial pragmatism and judicial restraint with Niehbuhrian Christian realism shows how it can help to understand each of these as appropriate dispositions when engaging in various forms of practical reasoning. Tom contends that Niebuhrian realism disposes religious and political activists "to combine vigorous advocacy with deep humility." He observes that good dispositions are virtues, and that such virtues "may be more powerful and determinative than the precise logic of analysis." And he concludes by asking about the value of judicial pragmatism and judicial restraint as providing an appropriate disposition toward the activity of judging.
Tom's comments and question helpfully bring to the surface an issue that Marc and I do not resolve in the paper. We speak of Posner and Wilkinson as advocating for particular judicial dispositions as features of judicial excellence. This terminology leads toward understanding the qualities of good judging in virtue-based terms. But we do not explicitly endorse a virtue-based account as against some other type of account. At other times in the paper, we speak in terms of judicial office or judicial role or judicial duty. We do this less to contrast a virtue approach with a deontological approach than to capture an aspect of judging that both pragmatism and restraint rub up against in various ways--the obligation of law. If the law requires something, the judge should neither be pragmatic nor restrained to the exclusion of the requirements of the law. Neither Posner nor Wilkinson claims otherwise. But too strong an emphasis on sensibility or disposition tends in that direction. One can see this in various ways in the cases that we describe in the second part of our paper.
While an emphasis on appropriate judicial dispositions toward constitutional adjudication stands in some tension with an emphasis on the right way to figure out what the law requires, it is nonetheless helpful to recognize the two as distinct. This enables analysts to discuss the contribution and the limits of each type of guide for judges. And when figuring out the right dispositions for judges in constitutional adjudication, it matters that the particular form of practical reasoning at issue is judicial legal reasoning. Appropriate dispositions toward the kind of practical reasoning engaged in by political and religious activists are not the same as appropriate dispositions toward judicial legal reasoning in constitutional cases.