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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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Obeying Adherence Rules

Obeying Adherence Rules

(p.123) 8 Obeying Adherence Rules
Limits of Legality

Jeffrey Brand-Ballard (Contributor Webpage)

Oxford University Press

The question addressed in this chapter is whether judges have reasons to obey adherence rules. Contrasts are drawn between conduct rules promulgated by rule makers, guidance rules followed by rule subjects, appraisal rules used for evaluating the conduct of rule subjects, and decision rules used by adjudicators. After concluding that judges have excellent pro tanto moral reasons to obey at least permissive rule, the chapter asks whether they have moral reasons to obey restrictive rule. It is concluded that the arguments for promulgating restrictive rule do not support obeying it in suboptimal-result cases. Neither do consequentialist arguments, contractualist arguments, or arguments from separation of powers. In fact, these arguments fail to support a moral duty to obey anything stronger than permissive rule.

Keywords:   conduct rules, decision rules, rules of thumb, particularism, consequentialism, contractualism, separation of powers

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