Judges Against Justice : On Judges When the Rule of Law Is Under Attack

"This book explores concrete situations in which judges are faced with a legislature and an executive that consciously and systematically discard the ideals of the rule of law. It revolves around three basic questions: What happens when states become oppressive and the judiciary contributes to the oppression? How can we, from a legal point of view, evaluate the actions of judges who contribute to oppression? And, thirdly, how can we understand their participation from a moral point of view and support their inclination to resist?"--Back cover Front Matter....Pages i-x The Judicial Role and the Rule of Law....Pages 1-11 Front Matter....Pages 13-13 State Repression and the Rule of Law....Pages 15-34 Repression of the Judiciary....Pages 35-52 Judicial Acceptance of Oppression....Pages 53-89 The Opposition....Pages 91-112 Front Matter....Pages 113-113 The Argument for Criminal Liability....Pages 115-123 The Condition of Illegality Under International Law....Pages 125-133 The Condition of Illegality and Failed Usurpations....Pages 135-141 The Condition of Illegality in Transitional Settings....Pages 143-150 Judges in Special Courts....Pages 151-157 Justification of Judicial Oppression....Pages 159-169 A Special Immunity for Judges?....Pages 171-187 Holding Judges Responsible....Pages 189-201 Front Matter....Pages 203-203 The Positivism Thesis....Pages 205-213 What Positivism?....Pages 215-225 Alternative Approaches to Legal Interpretation....Pages 227-236 Beyond Legal Theory as Explanation....Pages 237-252 The Lesser Evil....Pages 253-273 Judges for Justice....Pages 275-301 Judges Under Foreign OccupationReferences; Chapter 9: The Condition of Illegality in Transitional Settings; The German Post-Nazism Restoration; The Judges of the GDR; References; Chapter 10: Judges in Special Courts; Authoritarian Regimes and Special Courts; The US Military Tribunal and Special Courts; The View on Special Courts in Post-Nazi Germany; Should Taking Office in a Special Court Be Criminal?; References; Chapter 11: Justification of Judicial Oppression; Criminal Intent; The Eilifsen Case; Ignorance of Law; Duress; Discussion; References; Chapter 12: A Special Immunity for Judges? Obligations and OrdersImmunity and the Role of the Judge; Judicial Independence and Immunity; Division of Power; References; Chapter 13: Holding Judges Responsible; A Fixed Core of Justice; Why Are Not Judges Punished?; The Hurdle of Retroactivity; Does the Responsibility Go Far Enough?; References; Part III: The Moral Side of Judging; Chapter 14: The Positivism Thesis; The Reasons for Judicial Complicity; Radbruch and the Discussion on Nazi Germany; References; Chapter 15: What Positivism?; Undefined Positivism; Positivism as Separation of Law and Morality; Positivism as Formalism Acknowledgements; Contents; Chapter 1: The Judicial Role and the Rule of Law; Introduction; Overview of the Book; References; Part I: The War of Law; Chapter 2: State Repression and the Rule of Law; Rule of Law and Wicked Rulers; The Ideal of the Rule of Law; Departures from the Ideal; Transition from Rule of Law to Tyranny; Oppression in Legal Forms: Is It Really Law?; Inside and Outside of Law; References; Chapter 3: Repression of the Judiciary; The Need for Legitimacy; Judicial Independence; Purge of the Judiciary and Court Packing; Limits to Jurisdiction and Special Courts Persuasion and Conditioning of Legal MindsReferences; Chapter 4: Judicial Acceptance of Oppression; Acceptance of the Legality of Authoritarian Regimes; Acceptance of Oppressive Aims and Policies; Nazi Anti-semitism; Extension Beyond Race; South African Courts and Apartheid; Agreement with Oppressive Measures in Liberal Societies; Protection of Vital State Interests; Eugenics; Disproportionate Punishment; The Courts and Legal Repression; References; Chapter 5: The Opposition; ``The Flame of Law Never Quite Extinguished; Issues of Legality; Restrictive Interpretation Opposition in the Twilight of AuthoritarianismResistance and Legal Method; References; Part II: Holding Judges Responsible for Injustice; Chapter 6: The Argument for Criminal Liability; Introduction; Methodological Considerations; The Counterarguments; Judges as Culprits; References; Chapter 7: The Condition of Illegality Under International Law; The Legal Basis for the Allied War Crimes Tribunals; The US Military Tribunal Justice Case; The Acquittal of Nazi Judges; References; Chapter 8: The Condition of Illegality and Failed Usurpations; Judges and Revolution