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27 September: Wil Waluchow (McMaster University)

“The Misconceived Quest for the Elusive Right Answer Or Dedication to a Process, Not a Result” 

Abstract: Among the long-standing questions of legal theory is whether judges ever make new law when they decide legal cases. Many legal theorists believe that judge-made law is inevitable, perhaps even desirable. They think this is so even in modern constitutional democracies rooted in the common law, where deliberation and voting among elected legislators is widely accepted as the principal means through which laws are created.  Other legal theorists reject both the necessity and desirability of judge-made law. Ronald Dworkin was perhaps the foremost contemporary proponent of this view and set out to develop a complex theory that purports to eliminate the need for judges ever to create new law. According to Dworkin’s famous right answer thesis, there is always, in a mature legal system, an antecedently existing right answer to the pivotal legal question on which a case might turn. And it is the duty of the judge to find and apply it in deciding her case. Democratic legitimacy demands nothing less.  It is the aim of this paper to dispute the necessity of right answers. I will argue that democratic legitimacy may not, contra Dworkin, require antecedently pre-existing right answers. In developing this argument, my focus will be on constitutional cases involving charters of rights, where the possibility of significant indeterminac, and hence judicial creativity, loom large. The worry is that judges, in applying the abstract, morally charged provisions found in charters of rights, invariably make the law up as they go along, thus threatening the democratic legitimacy of their decisions. Indeed, the worry is that discretionary decision-making at this level will undermine entirely the very legitimacy of our constitutional democracies and the institutions of judicial review they typically include. My aim is to go some way towards quieting this worry by arguing that legitimacy may not always require right answers. In many instances it may require only that answers be derived in the right way.