Law and the Role of a Judge
University of Oxford – Faculty of Law; Queen’s University – Faculty of Law
September 13, 2014
Oxford Legal Studies
Research Paper No. 47/2014
This paper argues that role of a judge consists of obligations to apply the law, obligations to improve the law, and obligations to protect the law.
It defends this view against a competing suggestion by Michael Moore, who claims that, when acting judicially, judges are always obligated to apply the law, and the law alone. I argue that this depends on an incorrect view of the relationship between social roles and moral obligations, and an unacceptably capacious view of what the law is. I conclude by asking whether there nonetheless room to make a ‘conceptual choice’ to see law as Moore thinks of it, or a reason to reform the concept of law along such lines. I reject both ideas. There are fewer ‘conceptual choices’ in jurisprudence than some people think.