Judging in Good Faith

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Cambridge University Press, Nov 25, 1994 - Law - 271 pages
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This book is concerned with the ethics of judging in courts of law. Professor Burton analyzes the grounds, content, and force of a judge's legal and moral duties to uphold the law. He defends two primary theses. The first is the good faith thesis, whereby judges are bound in law to uphold the law, even when they have discretion, by acting only on reasons warranted by the conventional law as grounds for judical decisions. The good faith thesis counters the common view that judges are not bound by the law when they exercise discretion. The second is the permissible discretion thesis, whereby, when exercised in good faith, judicial discretion is compatible with the legitimacy of adjudication in a constitutional democracy under the Rule of Law. The permissible discretion thesis counters the view that judges can fulfill their duty to uphold the law only when the law yields determinate results. Together, these two theses provide an original and powerful theory of adjudication in sharp contrast both to conservative theories that would restrict the scope of adjudication unduly, and to leftist critical theories that would liberate judges from the Rule of Law.

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Stubborn indeterminacy
The good faith thesis
An illustrative case and first objections
Science and skepticism
Critical claims
Philosophies of law
Legal and moral duties
The politics of good faith
Tables of cases

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Law and Nature
David Delaney
Limited preview - 2003
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