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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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The Judicial Oath

The Judicial Oath

(p.142) 9 The Judicial Oath
Limits of Legality

Jeffrey Brand-Ballard (Contributor Webpage)

Oxford University Press

This chapter evaluates and rejects the claim that judges must adhere to the law in suboptimal-result cases because they swore a solemn oath of office to uphold the law. The relationship between oaths and promises is discussed. The basic point is that a promise to perform an otherwise immoral act does not give the promisor a reason to perform it. This principle is supported via examples and extended examination of current theories of promise keeping, including deflationary theories, consequentialist theories, free-rider theories, and reliance theories. It is suggested, however, that taking an oath may satisfy an INUS condition on acquiring judicial duties in realistic legal systems.

Keywords:   oaths, promises, immoral promises, consequentialism, free rider, fairness, reliance, INUS condition, T. M. Scanlon

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