WHY SHOULD JUDGES (ALMOST) ALWAYS SAY

I DIDNT LIKE THE LAW IN DEVIANT DECISIONS

FELIPE DRUMMOND
(undergraduation student at UERJ)
felipedrummond@gmail.com
This work intends to analyse and evaluate the way judges (and other public officials) reason and
justify their decisions when they think the most immediate applicable solution offered by law (such as
a clear rule) is not the most suitable one from the moral point or economic of view, and, thus, decide
to deviate from it. Thus, the idea is to compare the ways in which decisions are communicated to the
public when the decision-maker has already decided not to obey the law.
Taking for reference moral values dear to liberal democracies such as non-paternalism, institutional
transparency and judicial accountability, the goal of this work is to propose something like a super
sincere model of judicial communication.
This super sincere judging model is believed to be a good argumentative alternative in plural
societies, where people are prone to strongly disagree about concepts commonly used in legal
reasoning (such as equity, public interest, public order, reasonableness, vague principles), so that,
even though it can be a bit shocking for judges to say Ill disobey the law because I can give a a better
answer, it can be more desirable than adopting other argumentative strategies that sometimes can
sound as mere useful lies.

1. What I call a deviant decision?

The decision that departs from a locally applicable law standard (e.g., a clear rule) because
the judge thinks it is not the most suitable one from the moral or economic points of view.

2. How to justify/communicate a deviant decision? Formalist rhetoric vs sincerity.

Formalist rhetoric as the effort to hide judicial discretion disguising it as a law command.
Formalism as the denial of choice. (SCHAUER, Frederick. Formalism, Y.L.J., 97, n. 4, 1988, p. 509548)

3. Why do judges use formalist rhetoric? The motivation behind it.

a. Political desoneration
b. Evasion of procedures and solemnities
c. Ordinary prudential reasons
d. Lack of theoretical basis
4. Three objections to formalist rethoric under the liberal tradition.
How the formalist rhetoric makes the government less controllable?

a. Institutional transparency and accountability. How the formalist rhetoric

makes the government less controllable?

b. The argument from paternalism. Political alienation, choices based on wrong

premises and letting others (via state decisions) make choices in ones life.

c. The argument of rule of law in a 2nd best perspective. Exceptions and

deviation in particular cases must be told qua exceptions. Preserving the rule to other
cases.

5. A contrafactual model as solution: the supersincere judge. Counterbalancing

pragmatic considerations. What can be done? Institutional arrangements, persuasion, etc.