The Limits of Judicial Fidelity to Law: The Coxford Lecture

Abstract

This lecture asks whether judges might sometimes be morally justified in covert law-breaking in the interests of justice, the rule of law or good governance. Many historical examples of this phenomenon, are provided, drawn mainly from the British legal tradition, but also from Australia, Canada, India and the United States. Judicial noble lies are distinguished from fig-leaves and wishful thinking, and the relative importance of logic and pragmatism in legal reasoning is discussed. After examining arguments for and against judicial subterfuge, it is concluded that in modern liberal democracies subterfuge is justified only to avoid extreme injustices or violations of the rule of law.

How to read law

“…Judges must resolve disputes properly brought before them, and when the law does not resolve them, they must act creatively and make new law, guided by political morality." 49 Thus, we must disagree with the opinion of Posner on "value judgements": (It is) inevitable that many judicial decisions will be based on value judgements rather that technical determination not scientific, and therefore are not readily falsifiable and hence not readily verifiable eitherand as a consequence are not always profitably discussable." 50 Of course, in these cases there is a danger of subjectivism, but it can be overcome by the constant construction of value mentality because: "It is important in a democracy in which the governed are conceived to be free persons that the actions of officials, ranging from judicial decisions to enactments of the legislature, be based on a foundation of moral defensibility.…”

“…This shows the tension in coming to "happy endings" between "strict adherence to legal norms and their logical implications, and on the other hand, the entirely understandable urge to "do justice"-as the judges see it-to the flesh and blood individuals who stand before them". 47 The case Riggs v. Palmer showed that it was not true that "moral reasoning is too subjective, mystifying, and irresolvable to rely on in legal contexts. Were moral reasoning necessarily embedded in legal argument, it would only infect the law with endless controversies characteristic of morality.…”

“…2 From such everyday life, a manlawyer must come up with a solution that corresponds to the idea of the UN Commission on Human Rights, and we quote the following: "In 1994, the UN Commission on Human Rights recorded that it was "convinced that an independent and impartial judiciary and an independent legal profession are essential pre-requisites for the protection of human rights and for the ensuring that there is no discrimination in the administration of justice." 3 The inseparability of law from the society indicates an association between value and moral life and reading of law, since: "It is the morality of the Good Life, of excellence, of the fullest realization of human powers," 4 so "sin as a failure in the effort to achieve a realization of the human quality itself." 5 In the same way, Webster's New International Dictionary defines sin in the following way: "To depart voluntarily from the path of duty prescribed by God to man."…”

Um Contraste Entre Decisões Contra Legem E as Técnicas De Superação De Precedentes

“…No entanto, os casos que interessam à discussão não são aqueles em que o juiz deve preencher lacunas quando o direito é indeterminado. Eles são casos nos quais o juiz deixa que considerações extrajurídicas superem regras de decisão cujas prescrições são relativamente claras e determinadas (GOLDSWORTHY, 2011). Isso ocorre quando juízes desconsideram regras primárias de aplicação, que preveem uma consequência determinada X sobre um fato φ (e. g., regra do Código de Trânsito que prevê a cassação da habilitação do condutor que dirigia sem o cinto de segurança), e regras secundárias de julgamento que fixam procedimentos à tomada de decisão (e. g., regra de adjudicação que requer que juízes decidam de acordo com precedentes fixados por cortes superiores).…”

The Entrenched Minimum Provision of Judicial Review and the Limits of ‘Law’

“…Goldsworthy accepts that there may be legitimate (moral or political) reasons why the Court thought it necessary to make such a change-but a change it is, nonetheless. 116 Much of Goldsworthy's criticism stems from the fact that the limitations on legislative power found in the Kirk and similar cases went unnoticed for so long. Kirk itself is a good example.…”