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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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Optimal Adherence Rules

Optimal Adherence Rules

(p.212) 13 Optimal Adherence Rules
Limits of Legality

Jeffrey Brand-Ballard (Contributor Webpage)

Oxford University Press

This chapter asks whether the members of Group O (see chapter 11) have individual reasons to contribute to the group’s efforts by adhering in at least some suboptimal-result cases. It is argued that if enough of them are actually contributing, then they all have moral reasons to contribute in order to avoid riding free on one another. If too few of them are contributing, however, then the case for contributing becomes more difficult to make. Three possible moral principles are suggested, any one of which would support contributing under conditions of general defection. If one of them is true, then it can be argued that judges have reasons to adhere in at least some suboptimal-result cases, even when most other judges are deviating too frequently. This discussion culminates in the defense of individual policy, which specifies permissible deviation rates for judges based in part on how often other judges deviate. The chapter concludes that we must choose between (1) denying that judges must obey restrictive rule, because we have found no sound argument for that conclusion, and (2) accepting as a foundational principle, requiring no argument, that judges must obey restrictive rule.

Keywords:   imperceptible harm, risk, complicity, free riding, collective wrongdoing

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