All of this might of but passing interest except for a sentence from an article by legal philosopher Jeremy Waldron. I've posted about one of Waldron's articles here and here and others on other occasions; he's one of the best contemporary legal philosophers, in my opinion. I'm slowly working through one of more recent pieces, Jurisprudence for Hedgehogs, which you can download for yourself here. (Frankly, it's way inside jurisprudence baseball, of special interest only to those who wish to follow the Hart-Dworkin debate to the nth degree.)
One paragraph from that article caught my attention:
The distinctive thing about Justice for Hedgehogs was supposed to be an acknowledged move to the much stronger claim that ‘law is a branch, a subdivision, of political morality’ (405). If that’s the latest view, then Dworkin does have to respond to what would seem to follow—namely, that what the partisan, geriatric, moral anosognosics so often found ornamenting the Supreme Court have enshrined in the law, like the Citizens United decision or the very recent decision about the Voting Rights Act [or Obergefell or Roe], is now part of political morality. And if, as he has indicated, he is not prepared to simply retreat to the classic natural law position—lex iniusta non est lex—then he has to tell us how to think about bad law. (Emphasis added.)A brief setting of the stage might help. During his lifetime Ronald Dworkin was reacting to the sophisticated legal positivism of H.L.A. Hart. Dworkin believed that there was an unavoidable moral component to the law itself, including the law of judging the law (i.e., what courts do when they interpret and apply the law). Dworkin did not, however, believe there were objective, transcendent moral standards so he derived his argument for morality in the law from the nature of law, a sort of Anglophone phenomenology. Morality could not help but be part of law because it was inherently part of the thing we call "law," not because "laws"--to be law--needed to conform to an external moral standard (hence the reference to lex iniusta non est lex--"an unjust law is no law").
All well and good (or not), but how, asks Waldron, does Dworkin propose to evaluate whether a particular law is good or bad? All law is inherently moral; law cannot help but include a moral aspect (otherwise it isn't "law"). And if there is no external moral standard by which to evaluate a particular law, how do we know when a particular law or a court's interpretation of a law is morally wrong? After all, it can't be amoral since it is of necessity "moral" but, without an external standard, it can't be immoral, either.
(Dworkin's position, according to Waldron, can be salvaged. In other words, don't take my failure to summarize his argument at this point as evidence there no argument. It's simply that I want to get to the point of this post before I lose my audience.)
All of which brings me to the word of the day.
Many (most?) justices of SCOTUS declaim any moral aspect to their work other than, perhaps, carrying out a purported moral duty of positivism. They are merely "legal technicians," so they say, carrying out the intent of the Framers or Congress, as the case may be.
Yet on Dworkin's account--and with this I believe Waldron agrees--their work is, among other things, an exercise of moral judgment. In other words, they suffer from anosognosia--they are acting morally without knowing it. Not a clinical anosognosia, of course, since to act morally is neither a disease nor a disability, but ironically so, in their protestations of not doing what they cannot help but do.
Much more could be said about Dworkin and Waldron's take on Dworkin but I'll quit here knowing that at the least I may have helped a serious Scrabble player.