2 - The good faith thesis

Summary

JUDICIAL DUTY

Practical understandings of adjudication may concern how judges can, do, or should decide cases in general. As advanced here, no descriptive claim is made that judges typically decide cases in a particular way. The emphasis is on judicial duty – how judges can and should adjudicate. It is axiomatic that judges in a legal system are under a legal duty to uphold the law. A legal system involves a division of labor or separation of powers among its institutions. Especially in a diverse or pluralistic society, the division of labor would break down rapidly if judges (or other officials) were to pick and choose the laws they will uphold on the basis of individual critical evaluations of them one by one. The very idea of a legal system requires enough consistency in practice for the laws to be unified in operation. So judges do not fulfill their legal duty if they act only on those parts of the law with which they agree. It should be clear, however, that this legal duty does not entail that judges never act properly in disobedience of the law of a legal system. The law of a legal system does not supplant morality even for the judges acting within the system. To understand the relationship between a judge's legal and moral duties requires careful analysis of, among other things, the grounds, content, and force of a judge's duties to uphold the law.