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Is it unfair for a judge to give their verdict based on a technicality?

August 19, 2010

Response from Allen Stairs on August 19, 2010

Suppose the "technicality" is something that the law pretty clearly entails, even though it's doubtful that legislators had the particular worrying circumstances in mind. In that case, the judge is doing something we normally think judges are supposed to do: deciding cases based on the law. It's open to the judge to point out that this is an unfortunate consequence of the law, and may be open to him/her to adjust penalties accordingly, but if the law actually has a certain consequence, then that's the law. If the "technicality" is an unfortunate one, legislators can fix it, or so the argument would go.

Compare: suppose that it's not a matter of a technicality at all, but a matter of a law that the judge thinks is bad. Then it's still the judge's sworn obligation to follow the law.

Is this fair? In various senses of the word, the answer may be no. Should the judge do otherwise? That doesn't follow. It's not clear that the cure for bad laws is to have judges substitute their judgment of what's fair for what's legal.

That said, two comments. First, could there be cases so egregious that it would be just plain wrong of the judge to enforce the law? Perhaps. But that's different from saying that judges should routinely substitute their own sense of fairness for what the law entails. Second, what's been said here doesn't mean that judgments of fairness and the like never have a place in the law. Laws themselves can leave room for that. In some parts of the legal system, especially in some countries, the notion of equity has an important role to play. And when it comes to constitutional matters, legal philosophers like Ronald Dworkin have argued that the Framers were aiming at general principles and didn't intend for courts to be bound by their own conception of what those principles call for in particular cases. Whether that's the best view at the end of the day, it's at least a worthy contender.


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