Are judges legally obligated to enforce an unjust law?

By: Bridget | Date: September 17, 2010

That's the question posed by Douglas E. Edlin in his book, Judges and Unjust Laws . And it's a question that has been answered repeatedly by some of the most high-profile judes in the United States in the past year.

In July of 2009, shortly before her confirmation as Supreme Court judge, Sonia Sotomayor explained her judicial philosophy to be "simple: fidelity to the law. The task of a judge is not to make law, it is to apply the law."

Nearly a year later, during her own Supreme Court confirmation proceedings, Elena Kagen suggested that "The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.

Edlin's exploration of the problems posed by unjust laws helped to illuminate the institutional role and responsibilities of judges. The most recent example his research can be applied to is U. S. District Court Chief Judge Vaughn Walker's decision to overturn Proposition 8 on the grounds that "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license."

Newly released in paperback, Judges and Unjust Laws examines how judges justify their decisions based on ideas of their official duty and moral responsibility. Using case law analysis, legal theory, constitutional history, and political philosophy, Edlin finds that judges have the authority - perhaps even the obligation - to refuse to enforce laws they determine unjust.