Personal Morality and Judicial Decision-Making in The Death Penalty Context
Today, I have taken an oath as a judge, as a judge of a great Court of Appeals. What I can properly do for those left behind in this role is limited. A judge is appropriately restrained. … As a judge I must never forget that. …But neither must I or any judge hide behind the role and fail to do that...
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| Format: | Electronic Article |
| Language: | English |
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Cambridge Univ. Press
1994
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| In: |
Journal of law and religion
Year: 1994, Volume: 11, Issue: 2, Pages: 637-695 |
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| 520 | |a Today, I have taken an oath as a judge, as a judge of a great Court of Appeals. What I can properly do for those left behind in this role is limited. A judge is appropriately restrained. … As a judge I must never forget that. …But neither must I or any judge hide behind the role and fail to do that which is properly our function. …Whenever as judges we use logic or reasoning that would have led to catastrophic results in the great landmarks of our legal history—logic and reasoning that all too often did lead to such results—we should rethink that logic. And we should do so especially when that logic seems compelled by our roles.In Justice Accused, Robert Cover explores the tensions faced by "antislavery" judges—judges who strongly believed that slavery was immoral—when they were called upon to decide cases under laws that upheld the legality of slavery. Cover focuses on the tension created by the divergence of law and personal morality in such situations, which he terms the "moral-formal dilemma." After analyzing the legal and historical context of these cases, Cover identifies certain rhetorical devices used by such judges in their attempts to mitigate this tension. Specifically, Cover labels these dissonance-reducing behaviors as (i) elevation of the formal stakes; (ii) retreat to a mechanistic formalism; and (iii) ascription of responsibility elsewhere. | ||
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