by Jeffrey Brand-Ballard. New York and Oxford: Oxford University Press, 2010. 366pp. Hardcover $65.00/£40.00. ISBN: 9780195342291.
Reviewed by Emmett Macfarlane, Visiting Researcher and Postdoctoral Fellow, Harvard Law School, Harvard University. Email: emacfarlane [at] mail.law.harvard.edu.
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 [*591] given situation, then she has no moral reason not to use it (p.34).
Proceeding from that point, Brand-Ballard makes clear what he means by deviating from the law. The author is concerned with instances in which the judge knows the law requires a particular result (or range of results) and purposefully pursues another outcome, reaching “a result that cannot be supported by any reasonable reading of the controlling legal authority” (p.45). In chapter 3, he distinguishes deviating in this sense from acts like modifying legal rules, distinguishing precedents, using discretion available within the law, and from most definitions of judicial activism (though he notes that deviating may resemble judicial activism when the latter is defined as “result-oriented judging”) (p.51). Further, Brand-Ballard’s focus is on instances of a judge knowingly deviating, rather than instances of mistake, negligence or disregarding the law for personal gain. Importantly, his account does not adopt a particular perspective on the law itself (such as whether it is composed of only rules or includes principles) or any particular moral or ideological perspective.
Brand-Ballard accepts (though not conclusively) that judges have a legal duty to adhere to the law (chapter 4). Before advancing an argument that they may nevertheless have moral reasons to deviate, he explains that his account rests on the proposition that the law is determinative, at least in some cases (p.77). The author examines arguments in support of the undermining principle (stemming from concepts like legal positivism, role morality, formal legality, political legitimacy and legal authority), and finds none convincing (chapter 6). He nonetheless finds that lawmakers have good reasons to promulgate the strictest of “adherence rules,” referred to as “restrictive rule” – reasons that require judges to adhere in all cases. Adherence to restrictive rule could be based on the need for coordination and reliance of the legal system, efficiency, error prevention, stability, legitimacy, autonomy, respect, and fairness (chapter 7).
After examining arguments concerning predictability, efficient use of resources, error/fallibility, indirect consequentialism, contractualism, legitimacy, autonomy and respect, and the separation of powers, Brand-Ballard argues that judges have strong reasons to obey adherence rules generally, but they still have moral reasons not to obey restrictive rule (chapter 8). Even judicial oaths do not provide sufficient moral reasons to adhere in suboptimal-result cases (chapter 9). Before concluding Part I, the author explores arguments about whether judges have a moral duty to fulfill their legal duties. Examining arguments such as fair play and natural duty, Brand-Ballard concludes that none support a moral duty to obey restrictive rule. In his view, such arguments compel obedience to “adherence rules” generally, but not necessarily the absolutist version of those rules (restrictive rule). Further, the author criticizes arguments by John Rawls in support of a natural duty to obey unjust laws, noting that Rawls fails to address the question of whether moral reasons to disobey can undermine moral reasons to obey (something which may not implicate private citizens in the way it implicates state actors like judges) (p.165). Finally, Brand-Ballard contends [*592] that judges’ moral reasons to deviate override their duty simply to recuse themselves in suboptimal-result cases.
Where Part I of LIMITS OF LEGALITY presents a philosophically compelling exploration – and challenge – of the arguments surrounding a judge’s moral obligation to adhere to the law, Part II illustrates the difficulty of defending how a moderate conception of adherence would theoretically operate and prevent the deterioration of the rule of law. Where in the first part of the book Brand-Ballard examines conventional arguments about the legal and moral reasons to adhere, in the second he deals with specific arguments that judges must never deviate, or deviate only to avoid extreme injustices, in reasonably just legal systems. He maintains that deviating in all suboptimal-result cases would be an impermissible practice in realistic legal systems, but that judges are morally permitted to deviate even in some moderately suboptimal cases.
Brand-Ballard rests his argument in favor of moderate adherence largely on the systemic effects that result from judicial deviation (chapter 11). Perhaps the most prominent problem is the risk of what the author refers to as “mimetic failure” – the notion that when a judge deviates it might encourage other judges to mimic that behavior. Because not all judges will agree about which results are suboptimal, mimetic failure can occur when judges who follow a deviating judge’s example end up deviating in cases when the law actually requires an optimal result (p.187). In this respect, from a moral perspective deviating becomes just as bad as adhering. Brand-Ballard argues that mimetic failure provides judges with reasons to adhere in some suboptimal-result cases. Positing a core group of judges who share a perspective on what cases are considered suboptimal, the author argues that the duty to avoid mimetic failure becomes a collective responsibility.
The primary problem a judge faces when she deviates in some but not all suboptimal-result cases is that it is impossible to know what the threshold is for mimetic failure to result. Brand-Ballard acknowledges this problem, even to the point of suggesting it would be helpful if social scientists developed mathematical models to determine the levels in realistic legal systems (p.214). Judges in the core group face collective action problems in this regard (free-rider problems, for example). The author explores moral principles that support an individual judge’s contributions to the group’s efforts to adhere in at least some suboptimal-result cases (chapter 13). Brand-Ballard develops and defends guidance rules that permit each judge to deviate in a certain percentage of suboptimal-result cases, along with rules of prioritization (i.e. judges should deviate in cases that are more suboptimal than the suboptimal ones to which they adhere) (chapter 14).
It is the ensuing discussion, in my opinion, that exposes the central problem with the main argument advanced in the book. Brand-Ballard asks us to believe that judges are capable of using evidentiary standards akin to legal ones, like reasonable-doubt, in order to arrive at moral judgments about the suboptimality of a case result. He dismisses, without much discussion, the critique that when it comes to controversial social issues (relating to economic or redistributive justice, [*593] abortion, assisted suicide, and so on) judges ought not to be confident about the correctness of their subjective moral views (p.250). The fact that the author espouses no particular evidentiary standard and does not advance his argument from a particular moral or ideological perspective does not – in my opinion – satiate this concern. Indeed, the idea that the theoretical perspective advanced in LIMITS OF LEGALITY could defend either a pro life judge deviating when the law is clear about the constitutionality/legality of abortion or a pro choice judge deviating when the law makes clear abortion is prohibited speaks to a concern not only about the sanctity of the rule of law, but also about the rule of law’s connection to political legitimacy.
Social controversies often come before courts precisely because “reasonable people” disagree. Because his focus is on reasonably just legal systems, the burden on Brand-Ballard to defend deviation in such instances is all the more pronounced. I find the philosophical argument advanced in LIMITS OF LEGALITY convincing from the personal moral perspective of the individual judge. That perspective views moral judgment as capable of reaching “correct” results (something that is, perhaps, sometimes necessary in the realm of moral philosophy). However, the existence of sharp divisions in modern societies over moral issues demands a more explicit connection between political legitimacy and the rule of law than Brand-Ballard’s book ultimately addresses. In other words, the political process itself should carry some degree of moral authority in reasonably just systems of government. This critique should be tempered somewhat, given my earlier praise for the interdisciplinary nature of the book. The author’s attention to the wide variety of concepts and issues encapsulated in the book is so impressive for the breadth and depth with which he tackles them; it is perhaps unfair to complain he did not incorporate broader theories of political justice as well. That having been said, in the end I remain unconvinced as a result.
I was similarly unconvinced by the author’s argument that it is appropriate for judges to fail to treat like cases alike in attempts to avoid mimetic failure (and still avoid as many suboptimal results as possible) (chapter 15). My concern here is related to the preceding discussion of the moral weight of the political process and the legal system. Brand-Ballard dismisses opposition to such random selection premised on comparative justice and integrity. I think he understates the extent to which citizens attach moral weight to those ideals.
Finally, I also take issue with Brand-Ballard’s framing of the empirical reality of deviation, which he illustrates by noting that “[e]veryone agrees that there have been some deviant rulings over the years, despite disagreements about which ones were deviant” (p.287). For some legal realists and many political scientists (myself included), the lack of consensus about whether certain cases are deviant only reflects the relative indeterminacy of the law itself, rather than an explicit departure from what the law requires. Issues of rights and constitutional law in particular, especially at the Supreme Court level, concern broadly-worded and often ambiguous provisions and concepts for which the law does not provide clear [*594] answers. Despite distinguishing deviation from discretion early in the book, I wonder if Brand-Ballard’s repeated references to a case like GRISWOLD v. CONNECTICUT (1965) as one of deviation reflects the extent to which discretion is more widely available to judges than he assumes. In other words, in many instances where someone assumes judges may have consciously (although surreptitiously) deviated from the law, it is just as likely the outcome reflected the law’s indeterminacy.
Despite this critical analysis, I consider LIMITS OF LEGALITY an excellent, challenging and thought-provoking book. In fact, I regard it as mandatory reading for anyone interested in the judicial role, the distinction and relationship between morality and the law, and the nature of the rule of law itself. I hope this recommendation, despite my disagreement with the book’s conclusions, only serves to reinforce my impression that Brand-Ballard has developed a philosophically insightful and daring contribution to legal theory.
GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).
© Copyright 2010 by the author, Emmett Macfarlane.