Judging In Bad Faith
Must judges apply the law “sincerely” or “in good faith?” H.L.A Hart famously argued that, if legal officials are to require conformity to the law from its subjects, they must accept the law as valid. Hart, however, stopped short of demanding that the personal motivations of legal officials match their public utterances.
In this article, I argue that a judge may be motivated to decide cases for reasons that have nothing to do with the law. Accordingly, the law is systematically de-centered from her calculation of how to decide. Legal norms operate only to constrain or justify her independently motivated action. Whatever the judge publicly says, she need not genuinely endorse the individual laws or the legal system as a whole while engaging in judgment over others. Such judges are often described as acting in “bad faith.”
Legal positivism supports bad-faith judging by separating the public and private attitudes of legal officials into distinct points of view: the moral or prudential and the legal. Positivists argue that these different point of view are either incommensurable or that the legal point of view excludes the moral. It turns out that Hart’s doctrine of the separation of law and morality sits firmly in the incommensurabilist camp. Joseph Raz is a prominent supporter of the exclusionist position.
Any theorist who argues that judicial acceptance is satisfied by the public utterances of legal officials is committed to some far-reaching consequences. If good faith is supposed to rest upon a judge’s personal belief in the law’s legitimacy, no judge need act in good faith for a legal system to exist and operate effectively. That is, a valid legal system may exist even though every judge believes it is immoral.
Eric J. Miller. 2009. "Judging In Bad Faith" ExpressO
Available at: http://works.bepress.com/eric_miller/1