Luke wrote:
>Well, one of his claims (which you don't seem to agree
with) is that sometimes judges ought to enforce immoral
laws. I happen to agree.
Charles responded:
> This is the way I would paraphrase what you say here:
"Sometimes it is moral for judges to enforce immoral laws."
To me "ought" is a synonym for designating what is "moral".
I believe Charles has it exactly right here. I have been researching Rawls and his theories and will post on that when I have a chance, but if I have understood what I have read so far, fundamental rights are not open to debate. Human beings have them. When laws are enacted that violate these rights, judges (acting in the role of a check and balance), should invalidate them. The enforcement of immoral laws goes against the fundamentals that the system is predicated on.
> I mean if the judge could prevail (which sometimes they can
because the other party can't appeal for some reason), then I
would say the judge ought to go against the bad law.
I think it is helpful to always adopt the attitude of opposition/resistance. As soon as people start going along withouot questioning, then the terror begins.
Even if she is eventually overturned, a judge's act of resistance can be part of the process of changing laws that persecute.
Brian Dauth Queer Buddhist Resister