Are judges supposed to be objective? Citizens, scholars, and legal professionals commonly assume that subjectivity and objectivity are opposites, with the corollary that subjectivity is a vice and objectivity is a virtue. These assumptions underlie passionate debates over adherence to original intent and judicial activism.

In Common Law Judging, Douglas Edlin challenges these widely held assumptions by reorienting the entire discussion. Rather than analyze judging in terms of objectivity and truth, he argues that we should instead approach the role of a judge’s individual perspective in terms of intersubjectivity and validity. Drawing upon Kantian aesthetic theory as well as case law, legal theory, and constitutional theory, Edlin develops a new conceptual framework for the respective roles of the individual judge and of the judiciary as an institution, as well as the relationship between them, as integral parts of the broader legal and political community. Specifically, Edlin situates a judge’s subjective responses within a form of legal reasoning and reflective judgment that must be communicated to different audiences.

Edlin concludes that the individual values and perspectives of judges are indispensable both to their judgments in specific cases and to the independence of the courts. According to the common law tradition, judicial subjectivity is a virtue, not a vice.

"With keen insight into the common law mind, Edlin argues that there are rich resources within the law for judges to ground their opposition to morally outrageous laws, and a legal obligation on them to overturn it, consequent on the general common law obligation to develop the law. Thus, seriously unjust laws pose for common law judges a dilemma within the law, not just a moral challenge to the law, a conflict of obligations, not just a crisis of conscience. While rooted firmly in the history of common law jurisprudence, Edlin offers an entirely fresh perspective on an age-old jurisprudential conundrum. Edlin's case for his thesis is compelling."
---Gerald J. Postema, Cary C. Boshamer Professor of Philosophy and Professor of Law, University of North Carolina at Chapel Hill, and author of Bentham and the Common Law Tradition

"Douglas Edlin builds a powerful historical, conceptual, and moral case for the proposition that judges on common law grounds should refuse to enforce unjust legislation. This is sure to be controversial in an age in which critics already excoriate judges for excessive activism when conducting constitutional judicial review. Edlin's challenge to conventional views is bold and compelling."
---Brian Z. Tamanaha, Chief Judge Benjamin N. Cardozo Professor of Law, St. John's University, and author of Law as a Means to an End: Threat to the Rule of Law

"Professor Edlin's fascinating and well-researched distinction between constitutional review and common law review should influence substantially both scholarship on the history of judicial power in the United States and contemporary jurisprudential debates on the appropriate use of that power."
---Mark Graber, Professor of Law and Government, University of Maryland, and author of Dred Scott and the Problem of Constitutional Evil

Is a judge legally obligated to enforce an unjust law?

In Judges and Unjust Laws, Douglas E. Edlin uses case law analysis, legal theory, constitutional history, and political philosophy to examine the power of judicial review in the common law tradition. He finds that common law tradition gives judges a dual mandate: to apply the law and to develop it. There is no conflict between their official duty and their moral responsibility. Consequently, judges have the authority---perhaps even the obligation---to refuse to enforce laws that they determine unjust. As Edlin demonstrates, exploring the problems posed by unjust laws helps to illuminate the institutional role and responsibilities of common law judges.

Douglas E. Edlin is Associate Professor of Political Science at Dickinson College.