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> Because on one hand, the judge believes himself to be bound by conventions and norms, the gravitational force of precedents, and the judge’s internal sense of
by darkerside 4y ago
> Because on one hand, the judge believes himself to be bound by conventions and norms, the gravitational force of precedents, and the judge’s internal sense of what ought to be the result. On the other hand, these forces battle against various social forces and structural realities that are far more real than the canons about how you read statutes. Every judgment is the outcome of such a conflict.
Fascinating and excellent point, but I think I'd suggest one nuance to this interpretation. It works this way everywhere, but perhaps in India, the rule of law is in direct conflict with social norms, whereas other countries with rule of law have managed to align law with social convention to avoid this problem.
Imagine a judge interpreting a law that, for example, clearly assigns the death penalty to a child.