How Judges are Free to Decide Cases

Allan McCay and Michael Sevel (eds), "Free Will and the Law: New Perspectives", Routledge, Abingdon, 2019

Sydney Law School Research Paper No. 18/53

30 Pages Posted: 6 Sep 2018 Last revised: 18 Apr 2019

See all articles by Michael Sevel

Michael Sevel

The University of Sydney Law School

Date Written: September 3, 2018

Abstract

Philosophers of law have been primarily interested in theories of free will only in regard to the freedom of the citizen, subject to a body of criminal law, and its consequences for the justification of punishment upon breach of that law. This essay considers the free will of judges – first, in connection with two prominent views in legal philosophy, legal formalism and American legal realism, and, second, from the perspective of the libertarian theory of free will recently developed by judge and philosopher David Hodgson. I argue that while the commitments of formalists and realists as to whether judges are free to decide cases are often implicit and ambiguous, the extension of Hodgson’s libertarianism to judicial reasoning is a novel contribution to the theory of adjudication.

Keywords: free will, legal theory, David Hodgson, punishment, adjudication, determinism, legal reasoning, libertarianism

JEL Classification: K00, K10, K14, K30, K40, K42

Suggested Citation

Sevel, Michael, How Judges are Free to Decide Cases (September 3, 2018). Allan McCay and Michael Sevel (eds), "Free Will and the Law: New Perspectives", Routledge, Abingdon, 2019, Sydney Law School Research Paper No. 18/53, Available at SSRN: https://ssrn.com/abstract=3243160

Michael Sevel (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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