So — granting for the moment that the notion of a moral override may plausible under certain conditions — I can’t see how this could fail to involve extra procedures and also be considered to be minimally legitimate. To merely invoke principle without a concrete social process is to indicate that it is possible for the judge to rule by personal opinion alone. It would make the judge a sovereign.

This will produce disastrous (and avoidable) results. Take any legal case where there is moral disagreement; barring further clarifications, we will have opened up the door to a system which may make the worst possible moral rulings without a hint of deterrence. Moreover, we will have alienated the citizen (made the ruling less socially efficacious) by potentially failing to provide citizens with the comforts of prior publication of principles (the publicity condition - an absolute bare standard of anything normative) or the sense that the ruling in fact has standing among the greater polity (proper promulgation).

What I must emphasize is that the particular process of legitimation being advocated is what makes or breaks the proposal.

For instance, I would be sympathetic to a case where both judge and jury were to disagree with the law, and where their disagreements were taken to be a reflection of some cultural norms that the majority of reasonable and informed citizens would agree with. To deter grandstanding, failure by the justice to properly anticipate the unwritten laws of the public would result in their expulsion from the court. That would seem legitimate to me.

However, as I’ve indicated, many other forms seem implausible — especially if they do not conform to and derive from some concrete social process.