Judging in Good Faith
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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The good faith thesis
An illustrative case and first objections
Science and skepticism
Philosophies of law
Legal and moral duties
The politics of good faith
Tables of cases
abstract argument background justification California Law Review Cambridge causal claim Clarendon Press Concept of Law consequences constitutional constrained contract conventional law court Critical Legal Studies determinacy condition determinacy of results Duncan Kennedy duty to uphold example excluded facts faith thesis grounds for judicial grounds of weight H. L. A. Hart Harvard Law Review Harvard University Press Ibid identified interpretation Joseph Raz judges judicial decisions judicial deliberations judicial duty jurisprudence jurisprudential Justice kinds law and morals lawmaking legal community legal deliberations legal duty legal indeterminacy legal realists legal reasons legal rules legal standards legal system Legal Theory McLean Credit Union moral duty moral reasons neutrality outcome Oxford Patterson person Philosophy political morality Posner principles problem question Rachel racial reasons for action requires role Ronald Dworkin Rule of Law rule of recognition skepticism social Southern California Law stare decisis statute tion uphold the law Yale Law Journal