Preface

Summary

This book is about the ethics of judging in courts of law. At the core of such an ethics is the judge's duty to uphold the law. That there is such a duty in principle is largely uncontroversial within jurisprudence and judicial practice. The ground of the duty, its specific content, and its force, however, generally are left unanalyzed as the duty is taken for granted. In my view, this is a mistake, leading to much confusion on a matter of central importance in a democracy like the United States. Different conceptions of judicial duty support markedly different ideas of proper adjudication in courts of law. Too simple an understanding of this key duty can lead to both undue constrictions of legitimate adjudication and misplaced criticism of the Rule of Law. Constitutional democracies, by contrast with totalitarian, authoritarian, socialist, and communitarian political regimes, insist that uses of governmental power be within the law. Judges are supposed to uphold the law when they say whether others have acted within the law and when they take action themselves, implementing the Rule of Law and protecting individuals from oppression. The stakes are great. We should get it straight.

I will develop and defend a view of judicial duty – the “good faith thesis” – that permits a meaningful scope for adjudication under law within a constitutional democracy. Briefly, my thought is that the familiar jurisprudential treatments of adjudication share a common and undefended commitment to what I call the “determinacy condition.” This condition holds that judges cannot fulfill their duty to uphold the law unless they reach the single right result determined by the law.