David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
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Law and Philosophy 30 (3):319-352 (2011)
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.
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References found in this work BETA
H. L. A. Hart (1994). The Concept of Law. Oxford University Press.
R. M. Dworkin (1988). Law's Empire. Harvard University Press.
Jeremy Waldron (1999). Law and Disagreement. Oxford University Press.
Ronald Dworkin (2006). Justice in Robes. Belknap Press.
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