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.

Of course, it isn't morally acceptable to disobey a law merely because you disagree with it (you seem to be confusing the concept of a 'law' with the concept of a 'suggestion'). Let's suppose I'm an American driving in Europe and I want to drive on the right side of the street simply because I prefer it and find the government's insistence that I drive on the left side to be unintuitive and intrusive. This would likely result in someone getting hurt... most likely me. Laws like this one are designed to promote public order and protect people.

I think the drinking age is a good example of this pattern (that laws we disagree with are often there to protect us and promote public order). The drinking age was raised to 21 in the USA largely to cut down on drunk driving accidents and injuries. And (statistically speaking) it has worked rather well. I admit that laws like this one do hinder the liberty of more responsible young adults for the sake of the 'greater good,' but it is hard to argue with thousands of lives saved. In fact, I have a good friend who is a trauma surgeon at the local ER... he says that he would likely be out of work if alcohol were outlawed entirely since the most frequent feature in the patients he sees such as those from car accidents, injuries from violence, etc. is the use of alcohol.... (not that either of us would really like it if alcohol were outlawed).

So the most obvious problems with disobeying a just law are the possible harmful consequences to ourselves and others. There are probably other problems... for example if I break a law that is unnecessary (but not necessarily unjust) I may weaken the authority of the lawgiver and encourage others to break more important laws.

You make two good points. On the first, re death penalty, I would agree that there are cases where it's crystal clear that the accused is guilty. But this is really beside the point. The question is whether we can design a mechanism that correctly identifies these cases. In the absence of such a mechanism, we must be especially reluctant to use the death penalty.

Your other point is that perhaps we should incorporate into criminal verdicts an assessment (by the judge or jury) of the degree of certainty. But again, there is the question how accurate this assessment would be. And there is the further point that it would look quite bad to impose a severe punishment on someone with the comment that we've just barely reached the minimally required level of certainty. Better then perhaps to handle this issue unofficially: just as jurors sometimes acquit someone who very clearly did what the law proscribes when they feel the person did nothing wrong (example: the killing of a suffering and terminally ill spouse), a judge may sometimes impose a lesser penalty because she is less than fully convinced that the person really committed the crime.

And a possibly interesting footnote on this second point. In the case of acquittals, as well, one could incorporate an assessment (by the judge or the jury) of the degree of certainty. And this is actually done, I believe, in Scottish jurisprudence, which allows -- aside from "guilty" and "innocent" -- a third verdict of "not proven." The accused goes free, but has not been fully cleared of the charges brought against her or him.

I'm with you. But for me, the concern is not so much men vs. women and their respective rights, but the nature of punishment and who really ought to become a parent. The crucial problem with this case is that the murderer in question is currently incarcerated. There are certain rights which prisoners maintain, despite their crimes. The right to medical care. The right to worship. The right to have access to legal counsel. The right to live in a place that is safe while incarcerated. Putting someone in a dank hole to rot isn't justice, no matter the crime committed. One of the many social purposes of incarceration is punishment.

Punishment ought to hurt, but not too much (see note on dark hole above). No doubt it is painful for prisoners not to be able to do things that free people otherwise enjoy. But this strikes us as the fair price paid for committing crimes. I think the human right to have a family is on shaky grounds, much more shaky than the right for prisoners to have health, spiritual, and legal care. One reason for this is our tradition of human rights long predates the required biotechnology. Locke and Hobbes just weren't worried about smuggling sperm out of jail. A better reason why we shouldn't think of prisoners as having a human right to have a family while incarcerated is the potential life at stake: the future child. Society should come to the point of admitting that ethically, not everyone ought to become a parent. Who would I ban from parenting? It would be a great list to debate. But people currently incarcerated sounds like a good place to start. It would be taking things too far to say that convicted murderers should never become parents. If someone earns parole, turns his life around, and becomes a model citizen then I think - as far as the law is concerned - a convicted murderer might have the same chance that anyone else has to parent. Of course, would I say the same thing if the person in question was a convicted child molester-murder? Probably not, but my concern again would be ethics and not the reach of the law.