The idea that a judge must apply the law even if it gives an obviously unjust solution is very popular. It is easy to understand why. Is it not the function of the judges to apply the law? And, is not the law democratically voted? So, what could authorize a judge to disregard it?
In this brief essay, however, I will defend the opposite thesis: where the law gives an obviously unjust solution, judges have the moral duty to refuse to apply it.
To this aim, I will propose a simple argument:
(1) Prima facie, any person (including a judge) has the moral duty to refrain from doing anything that will predictably create a new injustice or increase an existing one.
(2) The fact that the law gives an unjust solution does not provide judges with a good reason to derogate from this moral duty.
(3) Therefore, where the law gives an unjust solution, judges must refuse to apply it.
1. The duty to refrain from doing anything that will predictably create a new injustice or increase an existing one
If one takes the idea of justice seriously, then one must admit that one should not do anything that will predictably create a new injustice or increase an existing one without a good reason to do so.
Suppose, for instance, that a person constrains one, under the threat of torture, to steal money from some poor people and give it to some rich people. This action will obviously have unjust consequences. It will either create an injustice or increase an existing injustice, depending the way in which you view economic inequalities. But, because of the constraint, I don’t think it would not be an unethical action for one to perform (it would certainly be unethical to constrain one to perform this action, but that is another issue). In other words, the constraint would give one a good reason to perform this action.
Subsequently, the question is: does a judge have a good reason – similar to the reason one would have in my example above – to cause or increase an injustice where she is legally required to do so?
I shall try to show that we should answer in the negative.
2. The lack of a good reason to cause or increase an injustice
Of course, I cannot examine every possible argument one could give to justify the view that being legally required to cause or increase an injustice provides a judge with a good reason to do so.
Therefore, I will only examine those I have encountered the most.
a) The democratic argument
One of the most common justification for the view I want to criticize is the following: in a democratic and liberal state (like France, Germany, Great Britain or the U.S.), the laws are legitimate because the people chooses the representatives who enact the laws. These laws express its will. Therefore, they morally bind the judges who should not disregard them.
But this argument is quite fragile, for it rests on an obvious fiction. We all know that the elections do not really make our representatives’ will the will of the people.
First, they only are a minor component of our representatives’ selection process. Parties preselect the candidates through a competition on which we have no control. Some arbitrary factors (like the voting method or the definition of the electoral districts) often have a strong influence on the elections’ results. Many officials and public agents who possess a lot of power are not even elected, and so on.
Second, when elected, our representatives often break their promises. And, even if they did not, it would not make much of a difference since no one really reads their campaign programs. If you doubt it, I suggest you perform the following experiment. Right before an election, ask ten of your friends the following question: what are the three main measures that the candidate you voted for proposes? You will quickly see that very few people will be able to answer your question, let alone find the correct answer.
Finally, and more fundamentally, why should the will of the majority of the citizens be regarded as the will of the whole people? Suppose, for instance, that you are having a drink with your group of friends. All of them want to go to the cinema afterwards. You do not particularly like watching movies, so you suggest they go without you. But one of them responds: “I want all of us to go to the cinema together, who agrees?”. Everybody but you raises his or her hand. Your friend then victoriously tells you: “You see, it is the will of the group that we all go to the cinema together, so you must come with us”. Would you feel morally obligated to obey? And, would it be just for your friends to force you to go with them using physical constraint?
As Robert Paul Wolff notices in his famous book In Defense of Anarchism , it seems impossible to justify the view that the majority is entitled to impose its will on the minority, just because it is the majority. Perhaps, one could make a case for the view that unanimous decisions morally bind everybody, but that would have very few practical implications in large societies like ours.
This, of course, does not entail that we should destroy our current systems of political decision; for, it is not so obvious that we could replace them with something better. However, we should not have a blind faith in these systems. Furthermore, we should remember one important thing: the idea that we must obey a decision merely because it is majoritarian is much weaker and controversial than the idea that we must not create a new injustice or increase an existing one. Hence, the latter should outweigh the former.
b) The argument from moral relativism
To my above argument, people often object: you speak of injustice, but there is nothing objectively just or unjust. It all depends on what our personal beliefs are. So, why should the judge’s personal beliefs in that regard prevail? Isn’t it better to apply a more consensual standard that we all recognize: the law?
But this argument relies on an obviously false premise: there is no fundamental moral claim that is uncontroversial. We sure have disagreements about justice and morals, but we also have many strong moral intuitions in common. For example, I think we would all agree that:
- It is unjust to cause great suffering to a person for trivial reasons;
- If a person risks her life to save the life of another person, then all things being equal, she does an admirable thing.
Of course, you could probably find a few people who disagree with these two ideas, but you would find many more who question the view that a majoritarian decision is legitimate just because it is majoritarian.
And, if we reason from these basic intuitive ideas of this type, we can identify plenty of cases where applying the law would obviously create or increase an injustice and, therefore, should be disregarded. Here are a few examples:
- Before 1972, in France, the law provided that adultery children could have no legal filiation. Applying this law created many unjust situations. Therefore, French judges were morally obliged to refuse to apply it. This is, by the way, what the French Judiciary Supreme Court (Cour de cassation) began to do in the end of the 1960’s .
- In the U.S., during the Vietnam War, applying the draft law led to forcing pacifists to fight in an immoral war, which was very unjust. Hence, American judges were morally obliged not to apply it .
- Today, many activists carry out illegal non-violent actions to draw the public’s attention on climate change or animal mistreatments. Most of the time, it is probably unjust to sentence them. Therefore, judges should refuse to do so.
 See e.g. Robert P. Wolff (1998), In Defense of Anarchism, Berkeley and Los Angeles California: University of California Press (especially its part 2 “The solution of classical democracy”).
 See Jean Hauser (2005), “Le juge et la loi”, Pouvoirs, 114(3), pp. 147-148.
 On this one could see chapter 8 (Civil Disobedience) of Ronald Dworkin’s famous book Taking Rights Seriously (1997, London: Bloomsburry).