How judges are free to decide cases

Abstract

Philosophers of law have been primarily interested in theories of free will only in regard to the freedom of the citizen, subject to a body of criminal law, and its consequences for the justification of punishment upon breach of that law. This essay considers the free will of judges – first, in connection with two prominent views in legal philosophy, legal formalism and American legal realism, and, second, from the perspective of the libertarian theory of free will recently developed by judge and philosopher David Hodgson. I argue that while the commitments of formalists and realists as to whether judges are free to decide cases are often implicit and ambiguous, the extension of Hodgson’s libertarianism to judicial reasoning is a novel contribution to the theory of adjudication.