The jurisprudence of judicial conscience

Abstract

Constitutional democracies are built on a promise that is easy to state and difficult to keep: that the person who judges a dispute between the citizen and the state, or between one organ of government and another, will decide according to law and nothing else. Every modern constitution makes some version of this promise. Uganda's Constitution makes it directly, vesting judicial power in courts established under the Constitution and declaring that power to be exercised in the name of the people and in conformity with the law and with the values, norms, and aspirations of the people.2 The promise is tested not in the ordinary run of cases, where law, evidence, and institutional expectation point in the same direction, but in the small number of cases where they diverge — where deciding according to law will disappoint an executive, unsettle a ruling coalition, embarrass a senior colleague, or invite personal cost to the judge who signs the order. It is in these cases, rare but decisive, that a constitutional order discovers whether its promise of independent adjudication was real or merely textual. This book is about that narrow, high-stakes territory. It asks a question that constitutional scholarship has approached from many angles —judicial independence, judicial ethics, judicial courage — but has rarely posed in its sharpest form: does a judge, at some identifiable constitutional threshold, not merely have permission to refuse an unlawful command, but a constitutional duty to do so? The distinction between permission and duty is not academic hair-splitting. A permission is discretionary; a judge who declines to exercise it has not failed in any obligation. A duty is binding; a judge who fails to discharge it has fallen short of the office itself. If judicial conscience is merely a permission, then a judge who complies with unconstitutional pressure has made a regrettable but lawful choice. If judicial conscience is a duty, then such compliance is itself a constitutional wrong—not necessarily one that attracts formal sanction, but one that the constitutional order is entitled to condemn as a betrayal of the judicial office.3 This book takes the second position and defends it doctrinally, not merely rhetorically