Hedgehogs and Foxes: The Case for the Common Law Judge
Volume 67, Issue 3, 749-806
With the epigram, “The fox knows many things, but the hedgehog knows one great thing,” Ronald Dworkin, America’s foremost contemporary legal philosopher, summarized his lifelong quest for the objectively true laws necessary to a just democratic society and for perfectionist judges of single-minded integrity—hedgehogs—to recognize and implement them through the moral reading of the Constitution. I make the contrary case for the common law judge—the fox who sees many things. I argue that common law judges—foxes—are essential to preserve, protect, and defend the dynamic empirical American ideal—that of a just, self-governing constitutional society of laws made by the people to further their own safety and happiness, or the common good.
I review different contemporary views of the role of judges, but particularly perfectionist and common law judges, and I find the latter to be generally disregarded as mere “conventionalists.” I then trace the history of common law judging. I argue that, as historically carried forward, common law judging employs practical moral reason to preserve and protect the moral vision of a self-governing people as embodied in the laws they make and approve as best to further their own common good. Common law judging is thus the tie that binds the social compact to a shared conception of the just society. And it is directly contrary to the objectivist rational idealism of perfectionist judges, hedgehogs, who see judges as empowered to discern and implement as constitutional law, through their decisions in “hard cases,” the “best” construction of the objectively true moral law. I illustrate perfectionist and common law judging in practice by reference to the landmark substantive due process cases—Lochner, Roe, Windsor, and Obergefell. And I call on us to preserve justice for foxes.