Document Type

Working Paper

Publication Date

6-19-2018

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; Legal Anthropology eJournals; LSN Subject Matter eJournals; AARN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Science Network; Anthropology & Archaeology Research Network

Abstract

This short piece is written for a symposium on Randy J Kozel's 2017 book Settled Versus Right A Theory of Precedent It is part of a larger project on honor oaths and the Constitution One key element of Kozel's book is its identification of "impersonality" as a central good served by precedent Assuming impersonality to be such a good one can recognize that it is a hard goal to achieve in the face of contrary pressures A source of motivation energy and agency is needed to fuel the judge's efforts to achieve impersonality In our constitutional culture a troika of three interrelated concepts or institutions provides this motivation The office honor and the oath Together they provide a sense of duty and constraint in filling a specific office a sense of honor that encourages the officeholder to fulfill that duty by creating both a desire to be wellregarded by one's peers and an internalized sense that one ought to behave in a way that merits high regard and through the oath a connection between the individual and the office and between the officeholder and the commitment to act honorably in office In short this troika provides a deeply personal wellspring for the commitment to "impersonality" in judicial office The argument here should be seen as part of a larger set of recent efforts in public law to focus on the nature and duties of the officeholder him or herself and not just on an impersonal system in which the officeholder and his or her duties and character are incidental Some of this work focuses on the oath some of it focuses on the fiduciary nature of public office and some focuses on the character and virtue of public officials This work is not confined to American scholarship and although it has been given a push by recent events substantially predates the current administration It deserves attention as a stream of public law scholarship with varied approaches but speaking in broad terms a common focus

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