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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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Reasons to Deviate

Reasons to Deviate

Chapter:
(p.92) 6 Reasons to Deviate
Source:
Limits of Legality
Author(s):

Jeffrey Brand-Ballard (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195342291.003.0006

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

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