Abstract
This paper addresses the phenomenon of judicial greatness by developing a general concept of greatness and applying it to law. Under the view offered in the paper, greatness (in general, and also in law) is connected to theoretical or methodological diversification. When applied to adjudication, this means that great judges are revered because they successfully make a prima facie case for their novel adjudicative methods. This is not a judicial duty but rather a voluntary (and in some circumstances, morally supererogatory) project. However, once a judge succeeds in making such a prima facie case, he is exempt (to a certain degree) from other judicial duties (including the duty to follow the law). This thesis challenges many theories of judicial duty, which do not allow normative room for supererogatory actions in law. The paper demonstrates these claims by discussing two paradigmatic great judges – Chief Justice Marshall and Justice Holmes.
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PhD candidate, Hebrew University, Faculty of Law. I am grateful to Hanina Ben-Menahem for his encouragement and advice throughout this project, which is a part of my PhD thesis. I thank Richard Posner, David Enoch, Alon Harel, David Heyd, Allan C. Hutchinson, Ram Rivlin, Issi Rosen-Zvi, Eden Sarid, Efi Zemach, Olga Frishman, Hadar Zabotisnky, Yehudit Daston, Israel Klein, Ofer Malcai, Yahly Sharshevsky and Nadiv Mordechay for many helpful comments and suggestions.
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Ben-Zvi, O. Judicial Greatness and the Duties of a Judge. Law and Philos 35, 615–654 (2016). https://doi.org/10.1007/s10982-016-9276-y
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DOI: https://doi.org/10.1007/s10982-016-9276-y