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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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Systemic Effects

Systemic Effects

(p.181) 11 Systemic Effects
Limits of Legality

Jeffrey Brand-Ballard (Contributor Webpage)

Oxford University Press

This chapter introduces new arguments for the thesis that judges have all-things-considered reasons to obey nonpermissive rules. These arguments appeal to the systemic effects of deviating from the law: effects on individuals other than parties to the case. The point of departure is Alan H. Goldman’s defense of restrictive rule. As Goldman shows, judges are in a special kind of collective action problem: a multiplayer moral-moral prisoner’s dilemma. This chapter suggests that judges who possess good moral judgment constitute a group—Group O—the members of which share two collective intentions: to minimize suboptimal results throughout their legal system and to avoid reaching suboptimal results themselves. They can fulfill the second intention by deviating from the law in suboptimal-result cases, but a pattern of deviating from the law, even in such cases, causes mimetic failure—other judges will imitate Group O and deviate in optimal-result cases, thereby reaching suboptimal results. At some point the rate of deviation by Group O could encourage so much deviation by other judges that the suboptimal results reached by those judges would outweigh the suboptimal results avoided by Group O. That point is defined as the “deviation density threshold.”

Keywords:   nonideal theory, Alan H. Goldman, collective intention, collective agent, prisoner’s dilemma, altruist’s dilemma, slippery slope

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