Who decides what is right?

29 January 2016 | General News
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Mr Scalia (left), during the Q&A session, with Prof Chesterman

The West sees judges as “moral arbiters”, which is a problem, said The Honourable Antonin Scalia, Associate Justice of the US Supreme Court. The eminent judge, a Lee Kuan Yew Distinguished Visitor (LKYDV), was speaking at a public lecture titled “Judges as moral arbiters”, held at Bukit Timah Campus on 28 January.

“I’m not talking about individual responsibility. I’m talking about who in a democratic society should have the power to determine the government’s view of what the natural law is and that seems to be obvious,” he said, explaining that it is the citizens of a country who determine what is required by natural law.

In Mr Scalia’s opinion, there is no right or wrong answer to moral questions such as these. Current society, however, has become “addicted to abstract moralising”, he said.

The federal judge, who has served in his current capacity since 1986, said abstract moralising is a “dangerous” practice when reflected in the operating documents of a nation state, as these moralisations would then have to be judicially enforced.

Another topic the judge touched on was the advantages and pitfalls of a “living constitution”, one that adapts and evolves over time to new circumstances without being formally amended. He is best known in the global legal fraternity as one who adheres to the judicial philosophy of originalism — that the US Constitution should be interpreted in terms of what it meant to those who ratified it over two centuries ago.

NUS Law Dean Professor Simon Chesterman kicked off the question-and-answer session by asking Mr Scalia what a textualist judge — who, like Mr Scalia, adheres strictly to the text — should do if the judge had to make a decision in which he or she was bound by morally objectionable laws. Prof Chesterman brought up Nazi Germany as a case in point, which was highlighted earlier in Mr Scalia’s talk.

Mr Scalia replied, “You do not have power to distort the law to say that it means other than what it says. Your sworn obligation is to apply the law. If that forces you to do something you think is immoral, you have to resign.”

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About 270 guests attended the public lecture

Members of the audience sought Mr Scalia’s views on a spectrum of subjects. They ranged from his thoughts on certain styles of judicial review such as judicial activism and judicial minimalism to past decisions he had made, including one on gun control. About 270 guests, comprising NUS Law students and faculty, and The Law Society of Singapore members, attended the lecture.

While in Singapore from 26 to 28 January, Mr Scalia met with Singapore Prime Minister Lee Hsien Loong at The Istana. He also paid a visit to the Supreme Court of Singapore, where Chief Justice of Singapore Sundaresh Menon and The Honourable Judge of Appeal Justice Andrew Phang hosted him. At the University, Mr Scalia called on NUS President Professor Tan Chorh Chuan, and also mingled with NUS students and faculty.

The LKYDV Programme, established in 1985, invites internationally eminent and outstanding academics and scholars to Singapore to make high-level contributions to local universities and Singapore in general.