Judicial Practical Reason: Judges in Morally Imperfect Legal Orders
Law and Philosophy 30 (3):319-352 (2011)
| Abstract | I here address the question of how judges should decide questions before a court in morally imperfect legal systems. I characterize how moral considerations ought inform judicial reasoning given that the law may demand what it has no right to. Much of the large body of work on legal interpretation, with its focus on legal semantics and epistemology, does not adequately countenance the limited legitimacy of actual legal institutions to serve as a foundation for an ethics of adjudication. I offer an adjudicative theory in the realm of non-ideal theory: I adopt a view of law that has achieved consensus in legal philosophy, make some plausible assumptions about human politics, and then consider directly the question of how judges should reason. Ultimately, I argue that judges should be cognizant of the goods that are at stake on particular occasions of adjudication and that this requires treating legal requirements transparently, i.e., as sensitive to their moral justifications | |||||||||
| Keywords | No keywords specified (fix it) | |||||||||
| Categories | ||||||||||
| Options |
|
|||||||||
Download options| PhilPapers Archive |
Upload a copy of this paper Check publisher's policy on self-archival Papers currently archived: 5,672 |
| External links |
 |
| Through your library | Configure |
Similar books and articlesAnthony R. Reeves (2010). Do Judges Have an Obligation to Enforce the Law?: Moral Responsibility and Judicial-Reasoning. Law and Philosophy 29 (2):159-187.
Jeffrey Brand-Ballard (2010). Limits of Legality: The Ethics of Lawless Judging. Oxford University Press.
Kim Lane Scheppele (1988). Legal Secrets: Equality and Efficiency in the Common Law. University of Chicago Press.
Steven J. Burton (1992). Judging in Good Faith. Cambridge University Press.
Marcin Matczak & Denis Galligan (2005). Strategies of Judicial Review. Exercising Judicial Discretion in Administrative Cases Involving Business Entities. E&Y Better Government Programme.
Jill O. Jasperson (2009). Progress Toward the Rule of Law in China. International Journal of Applied Philosophy 23 (2):249-270.
Norman E. Bowie (1988). Fair Markets. Journal of Business Ethics 7 (1-2):89 - 98.
Riccardo Guastini (2000). On Legal Order: Some Criticism of the Received View. Ethical Theory and Moral Practice 3 (3):263-272.
F. Atria (1999). Legal Reasoning and Legal Theory Revisited. Law and Philosophy 18 (5):537-577.
Analytics
Monthly downloads |
Added to index2011-04-03Total downloads31 ( #39,312 of 549,069 )Recent downloads (6 months)1 ( #63,185 of 549,069 )How can I increase my downloads? |
My notes
Discussion
