Jeffrey Brand-Ballard, "Limits of Legality: The Ethics of Lawless Judging"

Law and Politics Book Review
Vol. 20 No. 11 (November, 2010) pp.590-594

Reviewed by Emmett Macfarlane, Visiting Researcher and Postdoctoral Fellow, Harvard Law School, Harvard University

Normative accounts of judging typically offer arguments regarding how judges ought to apply the law. This vast literature contains various competing theories of interpretation, adjudication or of the law itself. LIMITS OF LEGALITY advances a complex and controversial argument about whether judges are, in fact, obligated to render what they view as the legally required decision when they have strong moral objections. Jeffrey Brand-Ballard’s book, rooted in the philosophy of ethics, tackles a question that most judges, lawyers and legal scholars take for granted: are judges morally obligated to adhere to the law?

Brand-Ballard’s book is a finely detailed, philosophically sophisticated and almost exhaustingly thorough account of legal and moral perspectives concerning judicial fidelity to the law. The interdisciplinary nature of the work is impressive; it tackles a vast array of topics ranging from judicial ethics and moral reasoning to concepts explored in legal theory, including the rule of law and the judicial role. While controversial, the author’s central argument is highly nuanced and often carefully circumscribed. Brand-Ballard contends that even in reasonably just legal systems judges are not morally obligated to adhere to the law when they believe the legally-required result is unjust. His argument is somewhat conditional: judicial deviation from the law is not limited only to exceptional cases that are viewed as “extremely” unjust; however, judges should nevertheless avoid deviating in all “suboptimal-result” cases or they risk damaging the rule of law. This component of the argument, while providing balance to the author’s highly contentious central claim, becomes problematic in the second part of the book where Brand-Ballard expounds upon the normative structure specifying how judges can deviate while protecting the rule of law.

LIMITS OF LEGALITY consists of two parts. Part I explores conventional arguments that judges have a moral duty to adhere to the law. It begins with an examination of judicial authority premised on the natural rights of judges and the idea that the state authorizes them to use force in the performance of their duties (chapter 2). Brand-Ballard argues that our natural rights to use nondefensive force (to seek restitution or to punish for perceived wrongs, for example) are morally prohibited in civil society, but that the law creates an exception for state actors like judges to exercise such force. Yet, he argues that many, if not most, people go too far in adopting the “undermining principle,” a standard which holds that if the law requires a public official to use force in a given situation, then she has no moral reason not to use it (p.34).

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