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Are judges legally obligated to enforce an unjust law?
Is a judge legally obligated to enforce an unjust law?
In Judges and Unjust Laws, Douglas E. Edlin uses case law analysis, legal theory, constitutional history, and political philosophy to examine the power of judicial review in the common law tradition. He finds that common law tradition gives judges a dual mandate: to apply the law and to develop it. There is no conflict between their official duty and their moral responsibility. Consequently, judges have the authority—perhaps even the obligation—to refuse to enforce laws that they determine unjust. As Edlin demonstrates, exploring the problems posed by unjust laws helps to illuminate the institutional role and responsibilities of common law judges.
Cover photograph © Christine Balderas / iStockphoto.com
"Douglas Edlin builds a powerful historical, conceptual, and moral case for the proposition that judges on common law grounds should refuse to enforce unjust legislation. This is sure to be controversial in an age in which critics already excoriate judges for excessive activism when conducting constitutional judicial review. Edlin's challenge to conventional views is bold and compelling."
—Brian Z. Tamanaha, Professor of Law, Washington University in St. Louis, and author of Law as a Means to an End: Threat to the Rule of Law
"Professor Edlin's fascinating and well-researched distinction between constitutional review and common law review should influence substantially both scholarship on the history of judicial power in the United States and contemporary jurisprudential debates on the appropriate use of that power."
—Mark Graber, Professor of Law and Government, University of Maryland, and author of Dred Scott and the Problem of Constitutional Evil
"With keen insight into the common law mind, Edlin argues that there are rich resources within the law for judges to ground their opposition to morally outrageous laws, and a legal obligation on them to overturn it, consequent on the general common law obligation to develop the law. Thus, seriously unjust laws pose for common law judges a dilemma within the law, not just a moral challenge to the law, a conflict of obligations, not just a crisis of conscience. While rooted firmly in the history of common law jurisprudence, Edlin offers an entirely fresh perspective on an age-old jurisprudential conundrum. Edlin's case for his thesis is compelling."
—Gerald J. Postema, Cary C. Boshamer Professor of Philosophy and Professor of Law, University of North Carolina at Chapel Hill, and author of Bentham and the Common Law Tradition
"Persons who read Judges and Unjust Laws will find themselves much smarter having encountered an interesting and original mind. If the role of the philosopher, as E.B. White suggested, is to add to the number of ideas available to human beings, Professor Edlin has more than done is scholarly duty."
—Mark Graber, University of Maryland
"Edlin's work is of great value as a historical and conceptual exploration of the foundations of constitutional judicial review...[his] analysis is original and highly provocative, and readers will find much food for thought... Judges and Unjust Laws deserves a welcome place on the bookshelf of any scholar working in the areas of judicial power, judicial review, constitutionalism, or the common law.”
—Jack Wade Nowlin, Law and Politics Book Review
"A clear argument that the rule of law can never merely be the rule of the laws without concern for their politico-social context...a quite tightly focused discussion of the justification for judicial review under Anglo-Saxon common law...Edlin's consideration of British cases alongside those from the US means there is a direct and clearly discernible avenue through which to draw analytical insights of use."
—Christopher May, Political Studies Review
"Douglas Edlin embarks upon a most surprising project in his intriguing new book, Judges and Unjust Laws...Edlin’s attempt proves remarkably illuminating...His is a book well worth a read by those who have knocked their heads against this puzzle in their own writings, and it is a book that simply cannot be ignored by the generations of young scholars to come who will undoubtedly find it irresistible to hurl themselves against the age-old problem of how to square the rule of law with the demands of morality."
—Heidi M. Hurd, David C. Baum Professor of Law and Philosophy, University of Illinois, for Ethics
"Edlin . . . anchors judicial review in common law . . . But he ranges more widely, bringing the story of the common law into the post-Holmesian age, when law becomes frankly judge-made. Edlin expands the meaning of judicial review, claiming that though judges are bound by precedent and legislative supremacy, they also have a moral duty to develop the law in the direction of justice."
—James R. Stoner Jr, Claremont Review of Books
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