8 - The politics of good faith

Summary

POLITICAL MOTIVATION

The motive for endorsing any practical understanding of adjudication must be a political one. To avoid misunderstanding, however, we should be careful to distinguish two things this might mean. A political motive can seek to advance one's own desires and interests, as when it turns on beneficial or harmful consequences of a proposal for one's favored political groups or causes. Alternatively, it can seek to endorse a good proposal for reasons of political morality, which is aimed at the good of all persons. In jurisprudence, the latter kind of politics should be the grounds for endorsing a proposal. The consequences of a proposal affecting various groups depend far more on the substantive content of the law than on the ethical standards of judging under it, if it depends on the ethics of judging at all. More important, the integrity of adjudication as a distinct legal institution is especially important. The winners of democratic political encounters (in the first sense) encase their victories in the law. The job of judges is to implement that law. The long-term implications of transforming adjudication into another arena for political contests are troubling: We should hesitate before depriving the political victors of their victory and thereby blunting the point of engaging in politics in the first place. One can only speculate how a society would resolve its important disagreements were political avenues turned into dead ends.