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Limits of LegalityThe Ethics of Lawless Judging$
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Jeffrey Brand-Ballard

Print publication date: 2010

Print ISBN-13: 9780195342291

Published to Oxford Scholarship Online: September 2010

DOI: 10.1093/acprof:oso/9780195342291.001.0001

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Legal Duty and Political Obligation

Legal Duty and Political Obligation

(p.157) 10 Legal Duty and Political Obligation
Limits of Legality

Jeffrey Brand-Ballard (Contributor Webpage)

Oxford University Press

This chapter evaluates and rejects the claim that judges have a moral duty to adhere to the law because they are legally obligated to do so (a thesis suggested, but not conclusively defended, in chapter 4). It considers how several familiar arguments for a duty to obey the law apply to the issue of judicial obligation: arguments from consent, fair play, natural duty, gratitude, and samaritanism. The moral permissibility of punishing individuals who have broken no law is also discussed and given a qualified defense. The chapter also argues that judges are morally permitted to decide suboptimal-result cases and to deviate, rather than self-recusing. The position defended in this chapter is shown to be surprisingly compatible with a duty on the part of citizens to obey the vast majority of even highly unjust laws.

Keywords:   political obligation, consent, John Rawls, fair play, natural duty, gratitude, samaritan, nullum crimen, recusal, Mahatma Gandhi

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