Jump to ContentJump to Main Navigation
Limits of LegalityThe Ethics of Lawless Judging$
Users without a subscription are not able to see the full content.

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

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 03 December 2020

Reasons to Deviate

Reasons to Deviate

(p.92) 6 Reasons to Deviate
Limits of Legality

Jeffrey Brand-Ballard (Contributor Webpage)

Oxford University Press

This chapter asks whether judges have pro tanto reasons to deviate in suboptimal-result cases or whether these reasons are undermined (as the undermining thesis holds). Some believe that judges are not morally permitted to advance fallacious legal arguments or to reach results for which no sound legal argument can be given. Someone who accepts either of these views will experience cognitive dissonance in suboptimal-result cases. Griswold v. Connecticut serves as an illustration. The chapter considers many arguments for undermining, including arguments from legal positivism, ordinary discourse, role morality, formal legality, political legitimacy, legal authority, intention, and means. None is determined to be sound. In the absence of a sound argument for undermining, the chapter concludes that judges have pro tanto moral reasons to deviate from the law in suboptimal-result cases.

Keywords:   legal positivism, political legitimacy, cognitive dissonance, intention, means, formal legality, role morality, authority, Griswold v. Connecticut, Roman Catholicism

Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs , and if you can't find the answer there, please contact us .