Limits of Legality The Ethics of Lawless Judging

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  • Format: Hardcover
  • Copyright: 2010-05-26
  • Publisher: Oxford University Press

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Judges sometimes hear cases in which the law, as they honestly understand it, requires results that they consider morally objectionable. Most people assume that, nevertheless, judges have an ethical obligation to apply the law correctly, at least in reasonably just legal systems. This is the view of most lawyers, legal scholars, and private citizens, but the arguments for it have received surprisingly little attention from philosophers. Combing ethical theory with discussions of caselaw, Jeffrey Brand-Ballard challenges arguments for the traditional view, including arguments from the fact that judges swear oaths to uphold the law, and arguments from our duty to obey the law, among others. He then develops an alternative argument based on ways in which the rule of law promotes the good. Patterns of excessive judicial lawlessness, even when morally motivated, can damage the rule of law. Brand-Ballard explores the conditions under which individual judges are morally responsible for participating in destructive patterns of lawless judging. These arguments build upon recent theories of collective intentionality and presuppose an agent-neutral framework, rather than the agent-relative framework favored by many moral philosophers. Defying the conventional wisdom, Brand-Ballard argues that judges are not always morally obligated to apply the law correctly. Although they have an obligation not to participate in patterns of excessive judicial lawlessness, an individual departure from the law so as to avoid an unjust result is rarely a moral mistake if the rule of law is otherwise healthy. Limits of Legality will interest philosophers, legal scholars, lawyers, and anyone concerned with the ethics of judging.

Author Biography

Gerald Postema, Cary C. Boshamer Professor of Philosophy and Professor of Law, Department of Philosophy, University of North Carolina at Chapel Hill

Table of Contents

Introductionp. 3
Practical Reasons and Judicial Use of Forcep. 19
Deviating from Legal Standardsp. 35
The Legal Duties of Judgesp. 56
The Normative Classification of Legal Resultsp. 74
Reasons to Deviatep. 92
Adherence Rulesp. 111
Obeying Adherence Rulesp. 123
The Judicial Oathp. 142
Legal Duty and Political Obligationp. 157
Systematic Effectsp. 181
Agent-Relative Principlesp. 202
Optimal Adherence Rulesp. 212
Guidance Rulesp. 233
Treating Like Cases Alikep. 253
Implementationp. 270
Theoretical Implicationsp. 292
Conclusionp. 308
List of Authoritiesp. 315
Bibliographyp. 319
Indexp. 339
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