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

Rice, Charles E.

BRAND-BALLARD, Jeffrey. Limits of Legality: The Ethics of Lawless Judging. Oxford University Press, 2010. xi + 354pp. Cloth, $65.00--Prof. Jeffrey Brand-Ballard, of the Trachtenberg School of Public Policy and Public Administration at George Washington University, opens this challenging book with a hypothetical prosecution in California under the federal Controlled Substances Act for medical use of marijuana (which is legal under California law). A Supreme Court precedent requires the federal district judge to uphold the prosecution because the federal law preempts the California law. But the judge "believes that medical marijuana should be legalized. Therefore ... he ignores the law and dismisses the indictment." An instinctive reaction might be to say that the judge violated his oath and moral obligation to uphold the law. But is that necessarily true? This book confronts that issue in detail.

The author concludes that debates about the role of judges in obviously and gravely unjust legal systems, as in Nazi Germany, might be thought to have little relevance to democratic systems, "in which the law does not promote such horrors ... Few commentators assert that judges are morally permitted to disregard laws that require only moderate, rather than extreme, injustices." But Brand-Ballard disagrees. He argues that "judges are sometimes ethically permitted to deviate from the law in order to avoid results that are only moderately unjust. Writers have not developed general theories of judicial lawlessness," he says, "that apply to reasonably just systems." He raises the issue: Do "judges sometimes have the moral right, and moral reasons, to disregard clear legal mandates, and not only when the law is extremely unjust?" "I argue," he says, "that judges have moral reasons--albeit defeasible ones--to deviate from the law whenever it requires them to reach results that are otherwise objectionable on moral or policy grounds."

Brand-Ballard raises questions that are not often addressed: "Even the laws of reasonably just societies inflict injustices ... [E]ven a law that is itself just can mandate unjust results in particular cases." He concludes that, "judges are morally permitted to deviate from the law in such cases, which arise in all realistic legal systems." He goes so far as to say: "My position entails, for example, that a federal judge is not necessarily obligated to uphold a ban on late-term abortions even if it has been proven constitutional. But my position also entails that a judge is not necessarily obligated to invalidate such a ban even if it has been proven unconstitutional. Such a position risks offending everyone but I am prepared to take that chance." That is why this is an interesting book.

The author distinguishes between judges disregarding "horizontal precedents" of the same court or a court on the same level and "[d]ecisions that deviate from vertical precedent [which] are almost universally regarded as unlawful. My question is, when are they also unethical?" His answer: Not always.

"My project will strike some readers," he says, "as a labyrinthine defense of judicial activism." The author's argumentation, regrettably, is labyrinthine in the intricate categories and distinctions he marshals to support his thesis. But that thesis is worthy of consideration.

Regrettably, the author does not utilize the relevant analyses on the unjust law of Thomas Aquinas, who rates only one footnote in the book. Instead, we are left to rely on the author's own assertions of principle. "Individuals in a state of nature have several rights--to life and liberty, at least. They have negative duties such as the duty not to kill other people and positive duties such as the duty to care for dependent children, to keep promises, et cetera. The details are not important ... The duties and rights that concern me are duties of nonmaleficence, samaritan rights, and rights o f justice. These duties and rights are elements of common morality and are recognized by most major moral theories, including deontology, contractualism, indirect consequentialism, and virtue ethics." But, to put it simply, "Says who?" What is the content of these rights and duties? And where do they come from? Do they come, as Aquinas and the Declaration of Independence say, from God? Or from the mind of the author? We are left to our own speculation because God did not even make the index in this book.

Brand-Ballard distinguishes, "between invalidating legal rules and deviating from valid legal rules." He defends, not conclusively, his theory from the charge of "judicial activism." His position would have been more persuasive if he had deployed appropriate metaphysical and objectively moral bases for his position. Nevertheless, he raises, subject to the limitations of his method, questions we too often ignore: Are judges robots? Embodied computers? Or morally responsible beings subject to a higher law than that of the state? When are they morally obliged to do justice, as they sec it, rather than mechanically to follow the letter of the enacted law? This book is a serious analysis of the problem.--Charles E. Rice, Notre Dame Law School.