scholarly journals Who are judicial decisions meant for? The ‘global community of law’ in Southern Africa

2018 ◽  
Vol 39 (5) ◽  
pp. 585-599 ◽  
Author(s):  
Peter Brett
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Indigenous Rights ◽  
Judicial Decision ◽  
Global Community ◽  
Judicial Decision Making ◽  
High Court ◽  
Judicial Decisions ◽  
First Case ◽  
Vexed Question

Rationalist models of judicial decision-making expect courts to defend their institutional integrity in politically sensitive cases. This article presents two African case studies of courts not doing so. They have elicited predictable backlash from executives and placed their institutions in avoidable danger. I argue that judges’ desire for esteem from emerging global judicial networks can explain this otherwise puzzling behaviour. These new networks become particularly salient in human rights cases. This conclusion partially supports Anne-Marie Slaughter’s controversial claims about the significance of ‘the global community of law’ but also identifies risks this poses for courts’ domestic authority. The argument is made with reference to two recent and well-known decisions by the High Court of Botswana and the Southern African Development Community Tribunal. The first case, Sesana (2006), dealt with the vexed question of indigenous rights in Africa. The second case, Campbell (2008), concerned the compensation of expropriated commercial farmers from Zimbabwe.

Human Dignity in the Jurisprudence of the European Court of Human Rights

2013 ◽  
Author(s):  
Jean-Paul Costa
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Human Dignity ◽  
Legal Reasoning ◽  
Central Element ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Judicial Decisions ◽  
European Court ◽  
Conceptual Link

The chapter first gives several examples of where ‘dignity’ (or ‘a person’s dignity’, or ‘human dignity’) has been a central element in the reasoning of the Court, or in the arguments advanced by judges in separate opinions. Based on this analysis, the principal question addressed is why the Court draws on ‘dignity’, a word neither explicitly nor, implicitly mentioned in the text of the Convention or the Protocols. What are the reasons for having—or not having—recourse to the concept of dignity in judicial decisions? Is there any objective reason for such choice? Or does it depend on the subjective preferences of the judges sitting on the bench? Is ‘dignity’ necessary for judicial decision-making in order to reach a specific conclusion in a case? Or does ‘dignity’ simply reinforce the legal reasoning of the Court, enabling the Court to give more weight to the arguments of one of the parties in the case? Finally, the chapter looks for a possible conceptual link between human dignity and human rights, insofar as this arises from the jurisprudence of the Strasbourg Court.

When Do Courts Constrain the Authoritarian State? Judicial Decision-Making in Jordan and Palestine

2021 ◽  
Author(s):  
Steven D. Schaaf
Keyword(s):  
Decision Making ◽  
Original Data ◽  
Judicial Decision ◽  
Appellate Courts ◽  
Judicial Decision Making ◽  
Legal Norms ◽  
Authoritarian State ◽  
Judicial Decisions ◽  
State Activity ◽  
State Actors

Under what conditions will authoritarian courts issue decisions that constrain state actors? This study breaks new ground in authoritarianism research by explaining when authoritarian states are—and are not—held accountable to legal norms. I leverage evidence from interviews with Jordanian and Palestinian legal actors, original data on judicial decisions, and two years of fieldwork shadowing judges as they conducted business in the courthouse. I find that courts in Jordan and Palestine are hardly regime pawns, as judges routinely prioritize their own interests above those of regime elites. My results also demonstrate that lawsuits revealing instances of intra-state disunity are particularly good vehicles for expanding judicial authority over state activity and, further, that appellate courts are uniquely less capable of constraining state actors.

Law Matters

2011 ◽  
Author(s):  
Michael A. Bailey ◽  
Forrest Maltzman
Keyword(s):  
Decision Making ◽  
Theoretical Model ◽  
Democratic Participation ◽  
Bill Of Rights ◽  
Judicial Decision ◽  
Stare Decisis ◽  
Judicial Decision Making ◽  
Judicial Decisions ◽  
Strict Interpretation ◽  
Commerce Clause

Building on the theoretical model of Chapter 3, this chapter seeks to assess whether “law” affects judicial decisions independently of policy preferences. Numerous legal doctrines may shape judicial decision-making, including stare decisis, originalism, plain meaning, the promotion of democratic participation, and doctrines with regard to specific elements of the Constitution such as the Bill of Rights or the commerce clause. The chapter concentrates on three legal doctrines (stare decisis, strict interpretation of the Constitution, and judicial restraint) that are both prominent and clearly more likely to play a role in structuring decision-making on some cases than on others. These doctrines are not necessarily canons of jurisprudence that are universally shared; they are principles that are widely acknowledged in the legal world as appropriately influencing constitutional interpretation.

The European Court of Human Rights and Transnational Judicial Dialogue

ICL Journal ◽  
2015 ◽  
Vol 9 (3) ◽  
Author(s):  
Carla M Zoethout
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Case Law ◽  
Judicial Decision ◽  
Council Of Europe ◽  
Judicial Decision Making ◽  
The Past ◽  
European Court ◽  
Foreign Law ◽  
The Us

AbstractOver the past decade, the European Court of Human Rights (ECtHR) seems more and more inclined to use foreign sources of law, that is to say, law that does not originate in the Convention itself or in one of the Member States of the Council of Europe. Unlike in the US, there is little discussion in Europe about this form of judicial dialogue in the case-law of the ECtHR. This paper seeks both to clarify transnational dialogue by the ECtHR and find ways to justify this practice, against the backdrop of the American debate on this topic. First, the concept of transnational judicial dialogue is analysed (Part II). Then judicial dialogue as it presents itself in the judgments of the ECtHR is assessed, especially when non-Convention or foreign law is being used in a substantive way (Part III). Subsequently, an attempt is made to define when and why the use of foreign law by the ECtHR can be considered a justifiable approach in judicial decision-making (Part IV). The paper rounds off with some concluding remarks (Part V).

Historical Institutionalism and Judicial Decision-Making

2017 ◽  
Vol 70 (1) ◽  
pp. 53-85 ◽  
Author(s):  
Erik Bleich
Keyword(s):  
Decision Making ◽  
Hate Speech ◽  
Analytical Framework ◽  
Historical Institutionalism ◽  
Judicial Decision ◽  
Change Over Time ◽  
Judicial Decision Making ◽  
High Court ◽  
Original Dataset ◽  
Over Time

This article integrates insights from different veins of historical institutionalism to offer an analytical framework that specifies how ideas, institutions, and actors account for key aspects of judicial decision-making, including change over time. To the extent that ideas are widely distributed, highly salient, and stable among actors in the judicial field, they can affect patterns of rulings in a particular issue area. The distribution, salience, and stability of norms, however, may change over time for reasons embedded in the institutional structures themselves. Existing policies, laws, or treaties create the potential for new actors to enter the judicial field through processes that theorists of institutional change have identified as intercurrence, displacement, conversion, layering, and drift. New actors can shift the relative salience of ideas already rooted in the judicial field. This ideational salience amplification can alter patterns of judicial decision-making without the fundamental and often costly battles involved in wholesale paradigm change. French high court hate speech decisions provide the context for the development of this framework and serve to illustrate the dynamic. The author uses evidence from an original dataset of every ruling by the French Court of Cassation regarding racist hate speech from 1972 through 2012 to explain the varying propensity of the high court to restrict speech that targets majorities compared to minorities.

scholarly journals Analyzing the Link between Dollars and Decisions: A Multi-State Study of Campaign Contributions and Judicial Decision Making

2016 ◽  
Vol 35 (1) ◽  
pp. 65
Author(s):  
Ryan J. Rebe
Keyword(s):  
Decision Making ◽  
Campaign Contributions ◽  
Causal Connection ◽  
State Supreme Courts ◽  
Judicial Decision ◽  
Supreme Courts ◽  
Judicial Decision Making ◽  
Judicial Decisions ◽  
State Study ◽  
Previous Election

<p>This article examines the causal connection between attorney contributions and judicial decisions in elective states.  The results show that contributions are a significant predictor of appellant success in state supreme courts when judges receive contributions from the attorneys for the appellant.  However, this relationship is contingent on the competitiveness of the judicial seat.  The analysis shows that judges who received a low percentage of the vote in the previous election are more likely to vote with contributors than judges who received a high percentage.  This evidence bolsters the argument that contributions directly affect decision making when judges feel electoral pressure.  The results also support the proposition that elected judges are more likely to vote with donors in states with nonpartisan ballots.  While the contribution amounts are higher in partisan states, the judges in the nonpartisan sample are more closely aligned with their contributors when it comes to decision making. </p>

scholarly journals Judicial Decision-Making, Ideology and the Political: Towards an Agonistic Theory of Adjudication

2021 ◽  
Author(s):  
Rafał Mańko
Keyword(s):  
Decision Making ◽  
Methodological Approach ◽  
Prima Facie ◽  
The Political ◽  
Judicial Decision ◽  
Legal Form ◽  
Judicial Decision Making ◽  
Legal Decisions ◽  
Judicial Decisions ◽  
Double Nature

AbstractThe present paper puts forward a first outline of a possible agonistic theory of adjudication, conceived of as an extension of Chantal Mouffe’s agonistic theory of democracy onto the domain of the juridical, and specifically, judicial decision-making. Mouffe’s concept of the political as the dimension of inherent and unalienable conflicts (antagonisms) which, nonetheless, need to be tamed for a pluralist democracy to function, creates an excellent vantage point for a critical theory of adjudication. The paper argues for perceiving all judicial decisions as having a double nature—juridical and political. Cloaked in legal form, judgments nonetheless decide on individual instances of on-going collective conflicts, opposing workers to employers, consumers to traders, tenants to landlords, moral progressives to traditionalists, minorities to majorities and so forth. Judges, when handing down judgments, enjoy a ‘relative sovereignty’, being always already inscribed into the institutional imperatives of the juridical, on one hand, and ideological influences, on the other, but at the same time called upon to decide in the terrain of the undecidable and contingent (after all, law does not ‘apply itself’ on its own). Indeed the determinacy of legal decisions is only relative: in many cases judges can, by performing a sufficient amount of legal interpretive work, reach a conclusion which will be different from the prima facie interpretation. The collective conflicts of a various nature (economic, ideological, socio-political), once they are juridified, become the object of judicial decisions which, in light of Mouffe’s theory, can be seen as temporary hegemonic fixations. The goal of critical legal scholarship is to destabilise such hegemonies in the name of justice. This can be done not only through an external critique of the law, but also through an internal one. The methodological approach advanced in the latter part of the paper emphasises the need for a critique of judicial decisions based on the consideration of all possible alternative decisions a court could have reached, and their evaluation in the light of conflicting interests and ideologies.

scholarly journals Legal Theories and Judicial Decision-Making: An Ontological Analysis

2020 ◽  
Author(s):  
Cristine Griffo ◽  
João Paulo A. Almeida ◽  
Giancarlo Guizzardi
Keyword(s):  
Decision Making ◽  
Explanatory Power ◽  
Constitutional Rights ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Pure Theory ◽  
Judicial Decisions ◽  
Ontological Analysis ◽  
Core Ontologies

In this paper, we expose the legal theories underlying two important classes of Legal Core Ontologies and show how these ontologies inherit both limitations and benefits (such as explanatory power) of their underlying theories. We do that with the help of a real case study in which we have normative omission and collision of principles. We use this case study to conduct an ontological analysis of the support for judicial decision-making in LKIF-Core (representing Kelsen’s Pure Theory of the Law) and UFO-L (representing Robert Alexy’s Theory of Constitutional Rights). We show that UFO-L is able to articulate the semantics of the content of judicial decisions by making explicit the individual’s legal positions that are raised in argumentation along a legal process. The same cannot be said of LKIF-Core that is based on the Kelsenian stance and focuses on the representation of general norms (norm types) and subsumption of facts to these norms.

scholarly journals WHY MUST I CRY? JUSTIFICATION, SACRIFICE, LONELINESS, MADNESS AND LAUGHTER IN POSTAPARTHEID JUDICIAL DECISION-MAKING

2007 ◽  
Author(s):  
Michael Bishop
Keyword(s):  
South Africa ◽  
Decision Making ◽  
South African ◽  
Social Economic ◽  
The Other ◽  
Judicial Decision ◽  
Heavy Load ◽  
Judicial Decision Making ◽  
Judicial Decisions ◽  
Critical Theories

Peter Tosh’s plaintive – ‘Why must I cry?’ – is normally interpreted to be about a lost lover. It probably is. But I am going to propose a different reading. I am going to pretend that Peter Tosh is a conscientious South African judge with postmodernist and critical legal tendencies. This judge is concerned with the massive responsibility she feels as a judge in post-apartheid South Africa. Not only must she walk the lonely, lonely, lonely road of ordinary judicial office, she must bear the big heavy load of the specific social, economic and political circumstances that place added pressure on her to transform, both society and herself. At the same time, she is confronted with critical theories that seek to impose an even greater burden on her in the form of unanswerable calls to justice and unfulfillable duties to the other. These theories are, on the whole, framed in a way that is both critical of judges and largely pessimistic about the possibility of success. Many of the theories specifically require the judge to mourn her inability to do the impossible. For many reasons then, our hypothetical judge asks: ‘Why must I cry?’ My answer in brief is: She need not cry. She must not cry. I will argue that the best means to address the various responsibilities imposed on judicial officers is through laughter, not tears. I begin by detailing the ‘culture of justification’ that dominates both judicial and academic thinking (I will look specifically at Mureinik, Klare and Botha) and examine exactly what burdens this philosophy imposes on judges. Next I acknowledge that the burdens of justification, onerous as they may be, are not enough. I adopt Van der Walt’s ideal of ‘law as sacrifice’ to argue that all judges have the additional duty to acknowledge the sacrifices that are an inescapable part their profession. I conclude by looking at humour and the law. Humour in judicial decisions has played an often unnoticed role (more in America than South Africa!).

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