Judicial Greatness and the Duties of a Judge

Posted: 23 Nov 2016

See all articles by Omri Ben-Zvi

Omri Ben-Zvi

Hebrew University of Jerusalem - Faculty of Law

Date Written: November 22, 2016

Abstract

This paper addresses the phenomenon of judicial greatness by developing a general concept of greatness and applying it to law. Under the view offered in the paper, greatness (in general, and also in law) is connected to theoretical or methodological diversification. When applied to adjudication, this means that great judges are revered because they successfully make a prima facie case for their novel adjudicative methods. This is not a judicial duty but rather a voluntary (and in some circumstances, morally supererogatory) project. However, once a judge succeeds in making such a prima facie case, he is exempt (to a certain degree) from other judicial duties (including the duty to follow the law). This thesis challenges many theories of judicial duty, which do not allow normative room for supererogatory actions in law. The paper demonstrates these claims by discussing two paradigmatic great judges – Chief Justice Marshall and Justice Holmes.

Suggested Citation

Ben-Zvi, Omri, Judicial Greatness and the Duties of a Judge (November 22, 2016). Law and Philosophy, 35: 615-654 (2016). Available at SSRN: https://ssrn.com/abstract=2874211

Omri Ben-Zvi (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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