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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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Practical Reasons and Judicial Use of Force

Practical Reasons and Judicial Use of Force

(p.19) 2 Practical Reasons and Judicial Use of Force
Limits of Legality

Jeffrey Brand-Ballard (Contributor Webpage)

Oxford University Press

This chapter presents an account of judicial authority based on the natural rights and duties of judges. In a state of nature, individuals have duties of nonmaleficence, samaritan rights, and rights of justice. In civil society they retain their duties of nonmaleficence and their samaritan rights, but their rights of justice are partially undermined as the state largely takes over the function of pursuing justice. Judges are agents of the state. When they decide cases they create, withdraw, or block threats of force. They have legal authority to do so. They are also morally permitted to use force in certain situations in which the law authorizes them to use it. This chapter introduces the undermining thesis, which states that if the law requires a public official to use force in a given situation, then he has no moral reason not to use it. Subsequent chapters challenge the undermining thesis.

Keywords:   natural rights, natural duties, nonmaleficence, justice, samaritan, malum prohibitum, malum in se, threats, coercion

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