DOING JUSTICE

A different kind of objection to the good faith thesis – one not based on the determinacy condition – charges that it requires blind obedience to the conventional law when it claims that a judge acts in bad faith by relying on moral reasons excluded by that law from the grounds for a judicial decision. A judge's general moral duties, it might be argued, require that justice be done in each case because morality is sovereign over the conventional law. When that law fails to produce the just result, considerations of justice should prevail. The judge might thus be duty bound to change the law or, if necessary, to manipulate the legal rules and the facts of cases as necessary to get to the morally right result. The good faith thesis, it might be charged, is objectionable because it requires judges to allow themselves to be used as instruments of injustice.

The good faith thesis allows that law and morals will provide conflicting guidance to judges whenever the applicable law is unjust and the reasons showing it to be unjust are excluded from judicial deliberations. The law often excludes general reasons of political morality – the special moral constraints imposed on public officers when they are exercising official power. Judges, in particular, are at the end of an authorization chain that significantly constrains their reasons for official action.