Essay on Judges And Their Moral Rights
Judges do not have moral reasons to adhere to all sub-optimal result cases. This argument means that judges, when acting in sub-optimal result cases should have the discretion to either adhere or fail to adhere to the sub-optimal result cases. Before going into details why this argument rejects the moral reason to adhere, it is crucial to define terms used in the thesis effectively. The key terms here include ‘moral reasons’ and ‘sub-optimal result cases.’ While defining the first term, a moral reason will be taken to refer to the reasoning that is based on any of the common ethical theories that govern human thinking and society. This also includes reasons which a majority of people would agree on as concerning the moral wellbeing of a person or society. Secondly, suboptimal result cases can be defined using two conditions.
Secondly, a case is taken to be sub-optimal if the judge fails to reach a result that they would have reached if the law allowed it. This is exclusive of the law. Therefore, in this thesis, suboptimal result cases will generally be taken as cases whereby the law prohibits a certain result which could be justified all ceteris paribus.
The first main reason why judges do not have the moral reason to adhere to suboptimal cases is that such adherence takes away discretion and thus turns the judges to machines; a situation which is opposite to the ideology of justice. Brand-Ballard (n.d.) explains that philosophical anarchism has dominated public opinion and he portrays this as the rejection by people to obey the law simply because it is the law. In this argument, the author shows how many people have rejected the idea of blind obedience. This denial of blind obedience of the law shows that the public is generally aware that the law should be flexible to serve the people and not merely to provide restrictions that people should follow.
The idea of justice, therefore, is founded on human reasoning and the scrutiny of those restrictions which work to make human life better and enhance their livelihood. One main argument for blindly following the law that many scholars and private citizens may provide is that judges swear an oath to uphold the law. However, following Brand-Ballard’s argument, the rule of law should promote good in society, and hence there are cases where judges should engage in lawless judging (Brand-Ballard, n.d.). Therefore, denying judges the discretion to either adhere or fail to adhere to suboptimal case results introduces rigidity which denies the people the flexibility that law is created to inculcate when ensuring justice is served.
Secondly, the moral reason to adhere to suboptimal result cases is abolished due to the failure to satisfy certain popular opinion or ethical systems that the people subscribe to. Delmas (2014) suggests that people have a moral obligation to resist unjust laws. This moral obligation should be based on the contemporary understanding of morality and hence should not be pinned down by older laws which are unjust and unfair. Views on equality, hate speech, and even freedom has been advanced in the United States, especially during the second half of the 20th century and also the 21st. Such views have invited popular opinion on any matters of morality which eventually become law. For instance, same-sex relationships started as a generally accepted practice before the law acknowledged them. In cases where the law has not been updated to accommodate popular opinion on such matters, merely following it despite public opinion amounts to acting unfairly. Deviating from the existing law is necessary in some cases; therefore, to accommodate developments in society. Since law keeps changing, judges should be free to deviate in times when the law does not accommodate changes in society that define popular opinion. Therefore, although some cases present the moral reason to adhere to the law, others may present a reason to deviate because of developing opinions.
Moreover, judges should have the freedom to either adhere or fail to adhere to all suboptimal result cases. The reason for including all cases is that in suboptimal cases, an ethical dilemma is introduced. The nature of ethical dilemmas is that they have no definite answer which can be adopted by everyone around the world as the ideal solution. Therefore, the moral agent requires discretion to apply ethical reasoning in deciding whether they adhere or not to the suboptimal results. Additionally, judges may be faced with conflicting obligations. As the center of justice, the judge owes every stakeholder in a fair case judgment often based on the justice system’s design. Therefore, in a case where adhering to a certain result serves unfairly to one of the stakeholders, the judge should not adhere to it. In other cases, if justice and fairness are served in the suboptimal results, the judge should adhere to them.
There are several obvious objections to this thesis, and the first one explains that judges are bound to act according to the law; otherwise, they would create room for corruption and undermine the law. This argument is based on the legal requirements for judges to act according to the particular requirements of the law and do so predictably to establish the basis for the law. This objection assumes that judges are merely instruments to deliver justice, which is strictly definable using specific terms and that is where the objection fails. The nature of the cases in the justice system is diverse, and often, it is seen that cases do not resemble each other. Therefore, every day, judges have a tough time making judgment calls for new cases which always involve the application of the law in some unique way. Therefore, in such cases, judicial discretion is expected, and justice is delivered through judgment calls and not strict predictable laws.
Secondly, another objection would be that failure to adhere to the suboptimal results deliberately favors one approach to ethical reasoning while overlooking others. Kagan (2011), for instance, faults consequentialism for focusing too much on the results and assuming that there were options to the actions taken by the individual. This weakness of consequentialism highlights other weaknesses in other ethical approaches, and this objection shows that failure to adhere to the suboptimal case results shows the subscription to conflicting ideas of ethics.
This objection is inaccurate because it mainly dwells on the diversity of ethical theories and principles while overlooking the dualism of decisions made in such cases. For instance, the judge can either administer a prescribed sentence or fail to do so. Therefore, although the objection rightly highlights the diversity of ethical possibilities that decisions could be based on, it should not be the case in the suboptimal cases since the dualism of the situation simplifies these cases. It is crucial to remember that the argument is whether to adhere or not to and it is not about the action to be taken if the judge does not adhere. This argument is in line with my thesis that judges do not have a moral reason to adhere to. Brand-Ballard’s argument on this issue is that the judicial duty to apply the law competes with moral reasons not to do so (Brand-Ballard, n.d.). Therefore, while Brand-Ballard argues that there is a competition between duty and morality, I argue that disregarding the law should be allowed as long as the case is suboptimal. His argument supports my thesis in that it encourages the judge’s discretion in adhering to or disregarding the law in judgment.
Part 2
The main counter-example of my thesis that ‘judges do not have moral reasons to adhere to all sub-optimal result cases’ is the fact that not all judges can be trusted to make a reliable decision on the optimality of case results. This counterexample argues that there are two types of judges: reasonable and unreasonable judges. On the one hand, reasonable judges are those who have sound moral reasoning and alignment, which allow them to effectively discern between optimal-results and sub-optimal results and reason to make an informed judgment call. On the other, unreasonable judges are those who lack this distinct ability. In such cases, the discretion to either adhere to or fail to adhere creates a system of chaos, and undesirable systemic consequences may be experienced.
To further elaborate on this counterexample, it is crucial to understand that judges act on the principle of precedence. That is cases decided by a judge should take into consideration previous similar cases and the decisions made. In the case whereby a reasonable judge fails, repeatedly and regularly to adhere to the suboptimal results of a case, they set a standard for precedence which should be emulated in future cases. Unreasonable judges who emulate this behavior present the risk of erroneously interpreting optimal cases as suboptimal and hence following the deviation earlier modeled by the reasonable judges, they deviate hence creating a case of mimetic failure. Mimetic failure is a situation where the unreasonable judge erroneously deviates in optimal-result cases.
This counterexample is applicable in many cases, and one of such cases in the event of the death sentence. This argument has been advanced by various scholars and shows how judges can wrongfully mimic earlier decisions. In a murder case where the details are not 100%, and the court finds the defendant guilty, the judge may avert the death sentence and choose a maximum jail term instead. According to Brand-Ballard (n.d.), judges treat previous cases as having a precedential force in them even if those were not the intentions of the ruling judge. Copying a judgment such as the hypothetical murder case could lead to flaws in the law. Therefore, the failure to adhere to the law in some cases could lead to mimetic failure due to the precedence that such cases set for future judgments. The result is that injustice and leniency may creep into the judicial system.
Part 3
While arguing against the counterexample provided in part 2, it is observable that the non- obvious counterexample heavily relies on the principle of reasonable and unreasonable judges which can be challenged as inaccurate. When a judge makes decisions, the question of collective action and their conflicting obligations comes across as paramount (Talbot, 2018). The judge’s actions should be such that they adhere to moral values and not merely the argument of what difference they make in society. By so doing, it would be wrong to assume that some judges are reasonable while others are not. The basis for the reason when it comes to the optimality of cases if reduced to the simplest argument models which do not necessarily require expansive experience or knowledge in a field to make a decision effectively.
In the counterexample, for instance, the ability of a judge to tell whether a case is optimal or suboptimal is very straightforward. In cases of murder where a trial is by jury, for instance, all members have to agree on a unanimous decision showing that there is a minimal margin of error in the decision of guilt. Similarly, the decision whether a case is optimal or not can be made using a distinct set of rules or rather a checklist. This ‘checklist’ could include issues such as whether popular opinion favors such action or not, and the assessment of the intentions of the defendants, among others. Therefore, the argument that some judges may be unreasonable to fail to identify optimal and suboptimal cases lacks ground since simple rules which need not vast experience or a complex structure of analysis exist. These rules include, among others, checking whether there is convincing evidence, the intentions of the defendant, and their previous records. Generally, therefore, judges do not have moral reasons to adhere to all sub-optimal result cases because doing so takes away their freedom of applying the law and serving justice.
