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Judges and Unjust Laws: Common Constitutionalism and the Foundations of Judicial Review

Judges and Unjust Laws: Common Constitutionalism and the Foundations of Judicial Review

By: Douglas E. Edlin (author)Paperback

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Is a judge legally obligated to enforce an unjust law? In Judges and Unjust Laws, Douglas E. Edlin uses case law analysis, legal theory, constitutional history, and political philosophy to examine the power of judicial review in the common law tradition. He finds that common law tradition gives judges a dual mandate: to apply the law and to develop it. There is no conflict between their official duty and their moral responsibility. Consequently, judges have the authority-perhaps even the obligation-to refuse to enforce laws that they determine unjust. As Edlin demonstrates, exploring the problems posed by unjust laws helps to illuminate the institutional role and responsibilities of common law judges. ""With keen insight into the common law mind, Edlin argues that there are rich resources within the law for judges to ground their opposition to morally outrageous laws, and a legal obligation on them to overturn them, consequent on the general common law obligation to develop the law. Thus, seriously unjust laws pose for common law judges a dilemma within the law, not just a moral challenge to the law; a conflict of obligations, not just a crisis of conscience. Edlin offers an entirely fresh perspective on an age-old jurisprudential conundrum."" -Gerald J. Postema, Cary C. Boshamer Professor of Philosophy and Professor of Law, University of North Carolina at Chapel Hill. ""Douglas Edlin builds a powerful historical, conceptual, and moral case for the proposition that judges on common law grounds should refuse to enforce unjust legislation. This is sure to be controversial in an age in which critics already excoriate judges for excessive activism when conducting constitutional judicial review. Edlin's challenge to conventional views is bold and compelling."" -Brian Z. Tamanaha, Professor of Law, Washington University in St. Louis. ""Edlin's work is of great value as a historical and conceptual exploration of the foundations of constitutional judicial review. . . . [his] analysis is original and highly provocative, and readers will find much food for thought. Judges and Unjust Laws deserves a welcome place on the bookshelf of any scholar working in the areas of judicial power, judicial review, constitutionalism, or the common law."" -Jack Wade Nowlin, Associate Professor of Law, University of Mississippi, in Law and Politics Book Review.|Is a judge legally obligated to enforce an unjust law? In Judges and Unjust Laws, Douglas E. Edlin uses case law analysis, legal theory, constitutional history, and political philosophy to examine the power of judicial review in the common law tradition. He finds that common law tradition gives judges a dual mandate: to apply the law and to develop it. There is no conflict between their official duty and their moral responsibility. Consequently, judges have the authority-perhaps even the obligation-to refuse to enforce laws that they determine unjust. As Edlin demonstrates, exploring the problems posed by unjust laws helps to illuminate the institutional role and responsibilities of common law judges. ""With keen insight into the common law mind, Edlin argues that there are rich resources within the law for judges to ground their opposition to morally outrageous laws, and a legal obligation on them to overturn them, consequent on the general common law obligation to develop the law. Thus, seriously unjust laws pose for common law judges a dilemma within the law, not just a moral challenge to the law; a conflict of obligations, not just a crisis of conscience. Edlin offers an entirely fresh perspective on an age-old jurisprudential conundrum."" -Gerald J. Postema, Cary C. Boshamer Professor of Philosophy and Professor of Law, University of North Carolina at Chapel Hill. ""Douglas Edlin builds a powerful historical, conceptual, and moral case for the proposition that judges on common law grounds should refuse to enforce unjust legislation. This is sure to be controversial in an age in which critics already excoriate judges for excessive activism when conducting constitutional judicial review. Edlin's challenge to conventional views is bold and compelling."" -Brian Z. Tamanaha, Professor of Law, Washington University in St. Louis. ""Edlin's work is of great value as a historical and conceptual exploration of the foundations of constitutional judicial review. . . . [his] analysis is original and highly provocative, and readers will find much food for thought. Judges and Unjust Laws deserves a welcome place on the bookshelf of any scholar working in the areas of judicial power, judicial review, constitutionalism, or the common law."" -Jack Wade Nowlin, Associate Professor of Law, University of Mississippi, in Law and Politics Book Review.

Product Details

  • ISBN13: 9780472034154
  • Format: Paperback
  • Number Of Pages: 336
  • ID: 9780472034154
  • ISBN10: 0472034154

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