Faculty Research Seminar: Legal Judgment as Self-Mastery
Many legal theorists, following a view of law made popular by Hans Kelsen and H.L.A. Hart, see law and legal judgment as a technical task. They say, for example, that law is ethically 'inert'. Nevertheless, this is not how law sees itself. Since Roman times scholars and practitioners have spoken of law as a matter of a particular type of ethical thinking. This became evident, for example, in a recent Court of Appeal judgment on the conduct of a magistrate who was eventually dismissed from his post (Page v Lord Chancellor  EWCA Civ 255). The court in Page outlined with great clarity the ethical obligations of any judge to set aside religious or other opinions for the sake of law. This is the correct theoretical position. When looked at from the perspective of the citizen who is subject to it, law requires us to arrive at a certain internal governance of our thoughts and emotions. A philosophical understanding of law must explain how this is possible - not an easy task, since an ethical duty to set aside ethics sounds paradoxical. In my own view, general jurisprudence must be able to show that there is a good argument about the practice of legal judgment as a form of self-mastery, on the basis of a distinction between public and private reasons. A judge is under a duty to get this right, in order to change the lives of others according to the law's public requirements, not according to anyone's private wishes.