This blog post examines the criteria a judge should use when legal conscience and moral judgment clash, exploring how judicial legitimacy and democratic values achieve balance.
The question of whether sincerity is required of judges is under discussion. Modern democratic states grant enforceability to judges’ rulings, yet simultaneously demand that rulings state their reasons to ensure democratic oversight over the exercise of judicial power. In such cases, judges must clearly reveal their core reasoning without falsehood or concealment, disclosing what they believe and their thought process. There is opposition to this view. A prominent view holds that since courts are tasked with resolving social conflicts and tensions, it is preferable for judges to appear unified in their opinions when handling highly contentious issues like capital punishment or abortion. If necessary, it is better to cite reasons differing from their inner convictions or to ambiguously evade the core issue. This opposing view presupposes that citizens lack the capacity to handle the truth, which contradicts democratic principles and is difficult to accept. However, the argument that exceptions exist where judges must choose to lie is worth considering.
For judges who must adjudicate according to law and conscience, conscience inherently means legal conscience, so conflicts between law and conscience are rare. However, the situation differs when legal rights and moral rights collide, as in the case of a slave owner asserting ownership over a fugitive slave who escaped to a state where slavery was prohibited during the era when slavery was recognized. In such situations, the legal conclusion can lead to profoundly unjust outcomes. It is difficult to find grounds to invalidate the legal right, yet applying the law strictly is morally wrong. A judge may either apply the law against his moral conscience or refrain from applying it in favor of his moral conscience. However, the former denies the judge’s conscience, and the latter violates his professional duty. Resignation benefits no one, so the only choice left for a judge upholding moral rights is to express that legal right to the parties contrary to his own beliefs. That is, the judge, while unable to deny that a right is legally recognized, creates another legitimate interpretation of the law and then, through the result of that interpretation, renders the legal right inapplicable in the judgment, thereby secretly extricating themselves from the predicament.
But this discussion does not negate the judge’s duty of sincerity. Today, extreme disconnects between law and morality are rare, and a democratic society that discerns and upholds truth would not create situations demanding judges find clever workarounds. Yet the dilemma of law and morality, along with the duty of sincerity, did not vanish entirely with slavery. Judges continue to experience moral resistance to specific laws even in modern times. Here, the judge’s choice consistently impacts justice, democracy, and the legitimacy of the judiciary.
