THE VERY IDEA OF A JUDGE

I argue that we cannot have legal order without judges who have an understanding of legal principles that transcends the law of their land. But this is an understanding of the principles of legality, rather than of the moral content of the law. Moreover, the reason we cannot have legal order without judges is that law must claim not only authority but also legitimate authority over its subjects. It follows that the willingness to engage in any kind of analysis of cases in order to answer questions about what judges should or should not do requires that certain positions sceptical about judicial review openly revise a fundamental commitment-the practically unrealizable commitment to have law without judges. But it also requires the common law tradition, including Ronald Dworkin, to attend more to the independent status of legality. In sum, the focus on the question ` What is a judge?' brings with it attention both to the idea of legality and to the specific authority of law.