A short (about 1,000 words) overview of adjudication, describing the standard view (judges should just apply the law, when possible) and two goal-oriented views: wealth maximization and the maximization of well-being – i.e., utilitarian adjudication.

This paper examines different mechanisms for adjudicating disagreement about distributive justice. It begins with a case where individuals have deeply conflicting convictions about distributive justice and must make a social choice regarding the distribution of goods. Four mechanisms of social choice are considered: social contract formation, Borda count vote, simple plurality vote, and minimax bargaining. I develop an agent-based model which examines which mechanisms lead to the greatest degree of satisfying justice-based preferences over the course iterated social choices. Agents are (...) ascribed two kinds of motivations: they wish to realize justice and to receive a greater package of goods. Each agent seeks to realize her ideal distribution, and the failure to do so leaves agents “disappointed,” resulting in their trading off the pursuit of gains in justice in favor of gains in self-interest. Mechanisms are assessed using the metric of how many agents remain interested in justice over the course of iterated adjudication. The mechanisms are also examined under some non-ideal conditions, such as the presence of power asymmetries or strategic behavior. Several significant results are addressed: social contract formation and simple plurality voting are robust under the conditions considered, bargaining is a highly ineffective means of adjudicating distributive disagreement, and lastly allowing for concessions in justice for gains in self-interest proves to be a crucial mechanism for ensuring the stability of resolutions. (shrink)

What is unprincipled adjudication and when, if ever, is it justified? In addressing those questions, this essay attempts to complete a project begun with Professor Fred Schauer.

Although Positivism and Natural Law theories seem to be mutually exclusive theories regarding the law, one might be able to salvage the attractive features of both theories by confining each theory to a different area of judicial life. The most promising line of demarcation is to confine Positivism to theories of validity, and to confine Natural Law to theories of adjudication. This strategy has been very ably outlined in a paper by David Brink, which I shall use as the (...) springboard for this essay. I argue that Brink's attempt fails and that any attempt to reconcile Positivism and Natural Law by dividing Theory of Adjudication and Theory of Validity in unlikely to succeed because Positivism has an adequate accoun tof both validity and adjudication. (shrink)

According to a well-established interpretive line, the Benthamic judge would be allowed no room for autonomous calculations of utility and his or her task would only be that of mechanically applying substantive law, which expresses the legislator's will. For Gerald Postema, in contrast, Bentham's judge would be granted ample power to decide cases by directly applying the principle of utility. This article criticizes both views, by showing that a adjudication was for Bentham utterly impossible, although this does not mean (...) that judges should be free to decide according to direct utility calculations. Judges must be the tutors of the citizens’ expectations, which, under a system of statute law, will focus on the code. However, they can avoid suboptimality in cases where applying a general rule would not maximize utility, without preponderant damage for law-induced expectations: Bentham's suggestion is that they do so by proposing amendments of the code to the legislature. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Adjudicating the Debate Over Two Models of Nature AppreciationSheila Lintott (bio)It seems commonplace to point out that we aesthetically appreciate a wide variety of objects: that is, art objects are not the only good candidates for aesthetic appreciation.1 We know from experience that one can aesthetically appreciate not only Georgia O'Keefe's White Trumpet Flower, but also a white trumpet flower. Similarly, we can aesthetically appreciate both a pictorial representation (...) of the human form and that form instantiated in certain prime specimens. We do so, moreover, without classifying either flowers or human beings as art objects. Yet, the paradigm of aesthetic appreciation today, in both everyday life and in educative contexts, is the appreciation of art, which explains why we tend to try to understand what makes aesthetic appreciation appropriate in terms of what makes art appreciation appropriate. This approach may not be entirely mistaken, for beginning with the familiar is always a good plan. However, it must be done with care, otherwise important differences between our relationships with the art we appreciate and with the nature we appreciate may be overlooked, thereby obscuring salient differences in the appreciation of each.In this essay, I focus on the issue of the appropriate aesthetic appreciation of nature and offer an overview of a contemporary debate on the topic. I begin with a general discussion of art and nature appreciation. I then summarize Kendall Walton's theory of appropriate art appreciation and explain his skepticism regarding the possibility of appropriate and inappropriate nature appreciation. Next, I discuss two models according to which Walton is mistaken, as the philosophers who present these models, Allen Carlson and Noël Carroll, do so to illustrate how nature appreciation can be properly considered appropriate or inappropriate. It may seem that given the recent proliferation of models of nature appreciation, the last thing we should seek is yet another model. However, in the end, I shall argue the need for a new and different kind of model, one that is a revisionist and extensionist model of nature appreciation. [End Page 52]Art and Nature AppreciationConcerning the perceptual activity of the audience, how we ought to appreciate artworks is largely uncontroversial. Perhaps this is why Carlson opens his attempt to understand the aesthetic appreciation of nature with a presentation of the aesthetic appreciation of art, explaining that "with art objects there is a straightforward sense in which we know both what and how to aesthetically appreciate."2 Although not all artworks offer "straightforward" examples of aesthetic appreciation, Carlson's general point is reasonably motivated. As Kendall Walton succinctly explains: "Paintings and sculptures are to be looked at; sonatas and songs are to be heard. What is important about these works of art, as works of art, is what can be seen or heard in them."3 That we ought to look at paintings and listen to sonatas seems obvious for at least two reasons. First, via formal education and informal interactions, we have grown familiar with the conventions of art appreciation; second, such conventions find experiential reinforcement when, for example, our auditory sense is tickled by a Mozart concerto.4Underlying our relative lack of confidence when it comes to nature appreciation is the obvious fact that nature, unlike art, is not an artifact. Nature was not made by beings like us; it was made neither for our use, nor for our entertainment, nor for our appreciation.5 As Carlson puts it, "art objects are our own creations; it is for this reason that we know what is and what is not part of a work, which of its aspects are of aesthetic significance, and how to appreciate them" (ANE, 41). We need, therefore, a model of nature appreciation that will serve as a source of education regarding how best to appreciate nature and will offer the confidence we lack and the guidance we seek.It might seem that we should simply apply our knowledge of art to nature appreciation — that is, appreciate nature as if it were art. However, as numerous philosophers have noticed, this approach is mistaken.6 The mistake is both theoretical and practical. Theoretically, it is a category error... (shrink)

This article presents a formal dialogue game for adjudication dialogues. Existing AI & law models of legal dialogues and argumentation-theoretic models of persuasion are extended with a neutral third party, to give a more realistic account of the adjudicator’s role in legal procedures. The main feature of the model is a division into an argumentation phase, where the adversaries plea their case and the adjudicator has a largely mediating role, and a decision phase, where the adjudicator decides the dispute (...) on the basis of the claims, arguments and evidence put forward in the argumentation phase. The model allows for explicit decisions on admissibility of evidence and burden of proof by the adjudicator in the argumentation phase. Adjudication is modelled as putting forward arguments, in particular undercutting and priority arguments, in the decision phase. The model reconciles logical aspects of burden of proof induced by the defeasible nature of arguments with dialogical aspects of burden of proof as something that can be allocated by explicit decisions on legal grounds. (shrink)

An important consideration which runs through the adjudication process in each dimension is that of insight vs. blindness. Whether it is a question of deciding if one description is a persuasive critique of another, or which of two rivals is more adequate empirically, or which is a more plausible and convincing narrative, one is always involved in assessing how far and how much each of the accounts permits us to see. The centrality of this notion certifies the inescapably hermeneutical (...) character of social description adjudication. It precludes the possibility of a decision-procedure, but not of rationality. The alternative to a canonical method of description adjudication is not relativism but hermeneutics. ;My argument for a hermeneutical approach to social description adjudication is made largely via consideration of a series of examples. I look at a collection of rival accounts of the same portion of social reality and at the process of choosing between them. I consider the sorts of reasons and arguments that might be advanced for preferring one to another and I evaluate them. The descriptions I look at are accounts of the French Revolution of 1848 and they include Karl Marx's Eighteenth Brumaire of Louis-Bonaparte, Victor Hugo's Napoleon the Little, Gustave Flaubert's Sentimental Education and the works of two recent twentieth century social historians. ;I show that these descriptions are complexes of at least three analytically distinct components: critical, empirical and narrative. I show, therefore, that the choice between them can be made from at least three corresponding standpoints. But I also argue that these three dimensions are not independent of one another; each, rather, presupposes the others and none is foundational with respect to the others. Adjudicating between competing social descriptions, then, turns out to be a complex non-canonical process of weighing the relative merits within each dimension. ;I counterpose to the decision-procedure model of social description adjudication a hermeneutical model. I show that good and convincing reasons for preferring one social description or historical interpretation to another need not be strictly derivable from or translatable into a set of universal rules capable of being formulated independently of and in advance of the consideration of the particular case. I show, rather, that rational adjudication between competing social descriptions consists in creative rule-transcending judgment akin to Aristotelian phronesis or Kantian reflective judgment. ;It is often presupposed that choices between competing theories, interpretations, actions or whatever qualify as rational just in case they result from the application of some decision-procedure. I take issue with this assumption when what is at stake is choosing between competing descriptions of social reality. I argue that there is not and cannot be a decision-procedure governing such choices, but that such choices may nonetheless be rational and intersubjectively defensible. (shrink)

This dissertation serves as a monograph on the moral and social implications of a utilitarian-based system of health care which recognizes and takes rights seriously. Though the design and claims are stated primarily in terms of utilitarianism, admittedly, there are elements of communitarian, deontological, and rights theories which have been incorporated. ;Such a commingling of theoretical elements, under the claim of being utilitarian, may seem ambiguous, however, it is my contention that such inclusions only serve to enhance the plausible nature (...) of this sphere-specific form of utilitarianism and the adjudication of rights. Additionally, though there are other components of theories included, the basis of utilitarianism still serves as the foundation by which all other actions, decisions, and values are judged. ;While it is true that utilitarianism offers a standard for all areas of life, the idea of examining a sphere or environment of utility, in this case, the utility associated with the sphere of health care, allows for the good to be clearly defined. One primary weakness of classical utilitarianism is that it ignores, or at least does not do full justice to, the notion of personal responsibility or sense of obligation. If the only duty or requirement is to produce some obscure sense of the "greatest good" or the "greatest happiness," the question of how the good is identified and who is to have the good remains unanswered by the traditional utilitarian construct. ;The classical view of utilitarianism is too broad in its scope of defining "the greatest good" or realm of value. But to narrow the area of value to a particular sphere or environment allows for the utility and associated rights in question to be identified, the value measured, and the success more easily interpreted. ;While maintaining the general premise of utilitarianism, that is, "the greatest good for the greatest number," the notion is not from some nebulous concept or subjective position about life or feelings in general. This sphere-specific position also acknowledges and defines the "rights" of the individual within the particular sphere being considered, in this case, the sphere of health care. (shrink)

This paper focuses on the practice of making reference to foreign law in legal adjudication. On the one hand, this practice has received overwhelming attention from legal scholars in the last two decades under the headings of “judicial dialogue”, “judicial cross-fertilization” or “constitutional conversation”; on the other hand, a systematic, theoretical picture of this practice is still lacking. The paper aims to bridge this gap by elucidating the structure of legal comparison in judicial decision-making from the point of view (...) of argumentation theory. To this end, the paper examines the various forms of comparative reasoning, identifies the set of their implicit premises and shows under what conditions referring to foreign law in legal adjudication is justified on its own grounds. This analysis will lead us to discuss the thesis according to which comparative reasoning by courts is changing the nature of law and the structure of contemporary legal systems. (shrink)

A previously unpublished paper by H.L.A. Hart responding to some of the work of Ronald Dworkin and found among Dworkin’s papers. For commentary on the origins and background of the paper see Samuel Burry, “H.L.A. Hart’s Lost Essay on Policies, Principles, and Adjudication,” American Journal of Jurisprudence 69 (2024): 000-00.

In recent years there has been a revival of interest in civic republicanism. In light of this revival, it is interesting to consider what sort of theory of legal or judicial adjudication such a doctrine—centered on the value of promoting freedom from domination—would recommend. After discussing the importance of such a theory and clarifying its relationship to broader questions of institutional design, it is argued that theories of adjudication should be assessed according to three criteria: first, their contribution (...) to the republican cause of promoting freedom from domination; second, their suitability to the characteristic features of legal systems; and third, their impact on long-run institutional stability. According to these criteria, a republican theory of adjudication would hold that judges and other legal officials should strive in their decisions and interpretations to maintain and enhance the distinctive value of the rule of law. (shrink)

In his rich discussion of the rule of law in Reciprocal Freedom, Ernest Weinrib observes that the prospectivity central to the rule of law seems incompatible with the apparent retroactivity of adjudication, for “parties to litigation are held to a norm of which they had no specific notice when the impugned conduct occurred.” Weinrib offers a deflationary response. Insofar as the legal materials from which any judicial opinion is crafted exist antecedently, parties are in fact on notice prior to (...) the adjudication of their dispute. All a judicial decision does, on Weinrib’s view, is make “definitive what ought to and could have been done earlier on the basis of the law as it existed earlier.” This, I argue, does not take seriously the choices that judges face in resolving cases, for while they are constrained by existing legal materials, those materials seldom demand only one resolution, and so the problem of retroactivity remains. (shrink)

This essay addresses a version of Jerome Frank’s question – ‘Are Judges Human?’ – asking instead: are human judges necessary? It begins, in section II, by outlining the technological developments which inform the view that they are not and critically evaluates the juristic position that seemingly endorses it. That position is labelled ‘technological evangelism’ and it consists of three claims about law and adjudication: the certainty, determinacy and partiality claims. Section III shows that these three claims are utterly incompatible (...) with what it calls standard and non-standard views of adjudication and law, while section IV considers some ways in which proponents of technological evangelism might try to reject standard and non-standard views. That section concludes that no plausible efforts have so far been made by technological evangelists to reject standard and non-standard views, and that those views therefore maintain their existing explanatory and normative priority. The overall conclusion of the essay is that technological evangelism is not a critical explanatory and normative engagement with law and adjudication as we know them, but an effort to replace them: not a game-changing intervention, but a game-ending one. (shrink)

This article examines Ghazālī’s critique of Avicenna’s second argument for the eternity of the world, as presented in Tahāfut al-falāsifa. While prior scholarship has addressed this debate, it often relies solely on Ghazālī’s rendition of Avicenna’s argument, which omits key details. To rectify this, the article first reconstructs Avicenna’s original argument, highlighting its nuances. It then defends the argument where necessary against Ghazālī’s objections. Finally, it evaluates a contemporary interpretation that supports Ghazālī’s critique, offering a critical analysis of its conclusions.

Analyses of complex entities such as bureaucracies, courts, legislatures, and firms typically personify them. A strong conception of personification requires that these entities have rational interests, rational beliefs, and rational normative judgments. On one account of personification, such personified rationality should be aggregate rationality : the interests, beliefs, and normative judgments should depend only on the interests, beliefs, and judgments of the individuals who constitute the complex entity. I argue that aggregate rationality is too strong a normative requirement to impose (...) on courts and legislatures. Key Words: collective rationality • personification • adjudication • doctrinal paradox. (shrink)

This paper explores the possibilities of a methodological framing treating evidentiary adjudication simultaneously as a _practical-prudential judicium_ and as a _narrative use of language_ (this latter giving a very specific role to Bernard Jackson’s purely _intensional_ understanding of meaning and his counterpoint between _the story in the trial_ and _the story of the trial_). Its purpose is actually to ask whether the contribution of this framing can plausibly be enriched (or whether it is instead disturbed or even rejected) when (...) we pay attention to the explosion of the “viserbal”—determining an inevitable encounter between “law and its other, the social” (bringing the “world to the courtroom”, as well as “the courtroom to the world”)—and to the _aspiration for_ a “juristic methodology of looking” (of “seeing” the event), this to be seriously taken as a step in the _search for_ a full “retinal justice”. My conclusion is that the visual dimension may have a productive methodological implication in the meaning of the _story of the trial_: I admit actually that this may be reconstituted as a performance to be heard and to be seen (confined to the “unity of time and space” of the _theatre of law_ and thus submitted to the eye-camera of the judge-_trier of fact_). (shrink)

The analysis of a dispute can focus on either interests, rights, or power. Commentators often frame the conflict over conscience in clinical practice as a dispute between a patient’s right to legally available medical treatment and a clinician’s right to refuse to provide interventions the clinician finds morally objectionable. Multiple sources of unresolvable moral disagreement make resolution in these terms unlikely. One should instead focus on the parties’ interests and the different ways in which the health care delivery system can (...) accommodate them. In the specific case of pharmacists refusing to dispense emergency contraception, alternative systems such as advanced prescription, pharmacist provision, and over-the-counter sales may better reconcile the client’s interest in preventing unintended pregnancy and the pharmacist’s interest in not contravening his or her conscience. Within such an analysis, the ethicist’s role becomes identifying and clarifying the parties’ morally relevant interests. (shrink)

Moral Quality in Adjudication: On Judicial Virtues and Civic Friendship How best to account for moral quality in adjudication? This article proposes a six-pack of judicial virtues as part of a truly virtue-centred approach to adjudication. These virtues are presented as both constitutive and indispensible for realizing moral quality in adjudication. In addition, it will be argued that in order to honour the inherent relational dimension of adjudication a judge should not only possess these judicial (...) virtues to a sufficient degree, he should also have the attitude of a civic friend. The Aristotelian concept of civic friendship will be proposed as an important complement to a virtue-ethical approach to adjudication. (shrink)

What is the value of fictions, metaphors, figures and scenarios in adjudication? This book develops three models to help answer that question: inquiry, artefacts and imagination. -/- Legal language, it is argued, contains artefacts – forms that signal their own artifice and call upon us to do things with them. To imagine, in turn, is to enter a distinctive epistemic frame where we temporarily suspend certain epistemic norms and commitments and participate actively along a spectrum of affective, sensory and (...) kinesic involvement. -/- The book argues that artefacts and related processes of imagination are valuable insofar as they enable inquiry in adjudication, ie the social (interactive and collective) process of making insight into what values, vulnerabilities and interests might be at stake in a case and in similar cases in the future. -/- Artefacts of Legal Inquiry is structured in two parts, with the first offering an account of the three models of inquiry, artefacts and imagination, and the second examining four case studies (fictions, metaphors, figures and scenarios). -/- Drawing on a broad range of theoretical traditions – including philosophy of imagination and emotion, the theory and history of rhetoric, and the cognitive humanities – this book offers an interdisciplinary defence of the importance of artefactual language and imagination in adjudication. (shrink)

In the 1770s’ lectures on ethics, Kant distinguishes between two principles of obligation: the principle of adjudication and the principle of execution. The former is the normative standard of moral evaluation, while the latter denotes the incentive for performing an obligatory action. This distinction is significant in that it anticipates Kant’s mature position of combining these two principles, i.e. the moral law later becomes the supreme principle of moral judgment and (via respect) is itself the incentive to moral action. (...) I explicate Kant’s distinction in view of the moral thought of Francis Hutcheson, Adam Smith and Christian Wolff. I challenge the dominant views which interpret Kant’s distinction in connection with Hutcheson and Smith, and argue that it is best understood in relation to Wolff’s conception of obligation. While Hutcheson’s distinction between exciting and justifying reasons is broadly similar to Kant’s distinction, Hutcheson’s account does not center on the concept of obligation. Furthermore, I argue that Smith’s distinction between the character of virtue and the faculty of the mind by which it is recommended to us does not concern the normative and motivational moments of moral agency, but rather the meta-ethical question of the nature of virtue and the faculty that conditions its appraisal. Finally, I show that Wolff’s conception of obligation involves normative and motivational aspects conceptually similar to Kant’s distinction between the two principles of obligation. (shrink)

Inquiry and Imagination in Adjudication. The Case of Digitalisation This comment situates the ideal of adjudication that Del Mar develops in Artefacts of Legal Inquiry within the reality of justice systems being in a ‘sorry state’; courts are generally considered too slow, too expensive and too complicated to provide meaningful access to justice to all citizens.In reaction to this justice gap, one development that is hailed by the access to justice movement is digitalisation. The use of legal technology (...) is promoted for its promise to deliver cheaper, faster, and better justice.As Del Mar’s ideal of adjudication emphasises the value of embodied, collective, imaginative, text-based practices of inquiry among judges and other legal professionals involved, this comment also addresses the question to what extent digitalisation poses a threat to this ideal.Rather than offering a clear-cut answer, this comment is meant as an encouragement to Del Mar and other legal theorists to take heed of the justice gap and digitalisation in the justice system as part and parcel of their theories about adjudication. (shrink)

Through the prism of republican theory, the paper discusses the nature of environmental protests and the judiciary’s responses to the related cases. The text argues that climate protesters act not solely to realise their freedom of assembly but also to understand their obligations to the environment and the community of citizens. An argumentation grounded in their belief that they were obliged to protest against climate change and even commit certain unlawful acts due to the state of necessity could give their (...) defence more strength, on the one hand, and inspire the courts to be more active in forcing governments to act on the climate cause, on the other hand. The paper consists of two sections, with the first discussing theoretical approaches to environmental citizenship, the alleged duty to protest against climate change, and their relationships with republicanism. The second section scrutinises case law from selected domestic and international courts dealing with climate protests. Specifically, it analyses the justifications for the right to protest against climate change presented in the submissions of applicants or defendants before the courts and the reasoning employed by the courts. (shrink)

It can be compatible with justice and the rule of law for a court to impose new legal liabilities retrospectively on a defendant. But judges do not need to distinguish between imposing a new liability, and giving effect to a liability that the defendant had at the time of the events in dispute. The distinction is to be drawn by asking which of the court's reasons for decision the institutions of the legal system had already committed the courts to act (...) upon, before the time of decision. I explain these conclusions through an assessment of the last episode in the debate between H.L.A.Hart and Ronald Dworkin. (shrink)

This paper analyses the adjudicative methods of the European Court of Justice (ECJ) through the concept of ideology. In part one, I discuss Tamara Ćapeta’s application of Duncan Kennedy’s conception of ideology to the ECJ. I argue it has two shortcomings, both stemming from its account of ideology: treating ideology as pertaining primarily to individual beliefs rather than institutional practices, and not treating the denial of ideology itself as an instance of ideology. In part two, I present my alternative account (...) of ideology which is more structural and functional than Kennedy’s and focuses on uncovering mystification and de-contestation in the case law of the ECJ. In the last part, I argue that at least three features of the Court’s work can be identified as ideological through analysing the conflict between fundamental freedoms and fundamental rights: the methodology of breach/justification, the language of ‘fundamentality’ and ‘balancing’, and the practice of collegiality. (shrink)

W. Baude’s and S.E. Sachs’s paper entitled “The Law of Interpretation” is a fascinating survey of a plethora of cases from the American common law system. The main conclusion of the article is extremely interesting from both philosophical and practical points of view. Namely, the authors claim that there exists something additional in the law that has not been identified before, and this is the law of interpretation. This law of interpretation is claimed to be a set of both written (...) and unwritten rules, including the canons of construction. However, a closer look at the examples provided by Baude and Sachs throughout their paper proves some nonhomogenous nature of the unwritten rules of the law of interpretation. I claim that this nonhomogeneity comes precisely from different, more fundamental facts to which these unwritten rules of interpretation are related. Moreover, I argue that the elements of the law of interpretation that are indeed incorporated into the law are in fact scarce, and I investigate the reasons for this state of affairs. Two main reasons are analyzed—the nature of context and the structure of all-things-considered moral arguments. (shrink)

Philosopher Kings? The Adjudication of Conflicting Human Rights and Social Values, by George C. Christie, examines the attempts by courts to sort out conflicts involving freedom of expression, including religious expression, on the one hand, and rights to privacy and other important social values on the other. It approaches the subject from a comparative perspective, using principally cases decided by European and United States courts. A significant part of this book analyzes conflicts between freedom of expression and the right (...) to privacy. In a world in which, freedom of expression and privacy are said to be of equal value, the book explores whether it is possible to develop, through case-by-case adjudication, a legal regime which can give clear direction as to what expression is or is not permitted. Otherwise, if such a regime proves impossible, in the guise of recognizing the equal value of expression and privacy, privacy may become de facto the preferred value. (shrink)

In human rights adjudication, courts sometimes face issues that they lack the expertise or constitutional legitimacy to resolve. One way of dealing with such issues is to ‘defer’, or accord a margin of appreciation, to the judgments of public authorities. Although there is a rich literature on the subject of deference, two important questions remain unresolved: what devices courts should use to exercise deference, and how deference can be made more workable for judges and predictable for litigants. This book (...) offers the first comprehensive analysis of these questions. It introduces six devices for deference (namely, the burden of proof, standard of proof, standard of review, giving of weight, choice of interpretation, and choice of remedy), analyses how courts should choose amongst them, and proposes techniques for rendering deference practicable. The book’s arguments will enable human rights adjudication to be more principled and more in line with the rule of law and separation of powers. The book has two distinctive features. First, it engages with the jurisprudence of six common law jurisdictions that apply a structured proportionality test in rights adjudication, namely, Canada, Hong Kong, Ireland, Israel, New Zealand, and the United Kingdom. Second, the book offers guidelines for judges who wish to apply its theoretical arguments. Combining theory with practice in a broad range of jurisdictions, the book will be an important reference for researchers and students of constitutional theory, comparative constitutional law, and human rights law around the world. It will also assist practitioners, judges, and policymakers who have to grapple with issues of deference in adjudication. (shrink)

First, on the "lawless adjudicator." The question I want to pose is this: Why is it so hard for the legal academy - and the legal profession - to come to grips with the bare logic of the charge, much less the case, that Vere acted lawlessly, and therefore criminally, and indeed murderously, when he willfully distorted the governing law, so as to execute Billy? Why has this quite specific legal claim not received more of a hearing? Is it because (...) Weisberg was not sufficiently considerate in his communication of this idea? On first blush that seems implausible: It is one thing, after all, to argue syllogistically that Claggart is Christ, that Claggart is a villain, and that therefore Christ is a villain-one can see why that claim may require considerate communication - but the indictment of the fictional Vere in a nineteenth century novella? Why has it proven so hard for the academy to hear Weisberg's claim that Vere is a murderer? Here is the syllogism: Vere was charged with the duty to uphold the law, he betrayed the law and his duty to apply it in order to execute an innocent man, and he did it knowingly, intentionally, and with plenty of malice aforethought, and for the most profoundly personal, political reasons. Therefore, Vere is a lawless adjudicator, a dissembler, a criminal, a murderer. Does that straightforward legal argument - that an adjudicator is a man to whom the power to declare what the law is has been delegated; that an adjudicator might be a criminal, and might achieve criminal ends, through dissembling, misrepresenting, or perverting legal texts, and thereby through breaching a trust - itself require considerate communication? Has our faith in adjudication reached such absurd heights that the lawless or criminal adjudicator has become an unthinkable oxymoron? Or, have our expectations dropped so low that the phrase "lawless adjudicator" has become redundant, so self evident, that the presentation, the claim, that an adjudicator is lawless, is just a trite, banal, and unnecessary restatement of a mode of being always and already present in courts of law? (shrink)

In this study of Marshall’s Christology in Conflict, the author deals with three questions and issues which can be raised regarding Marshall’s argument: his account of the historical shape of the problem, his critique of Rahner, and his use of Barth’s christology.

Law and morality : constructs and models -- The morality of cognition : the normativity of ordinary reasoning -- Law in action : a praxeological approach to law and justice -- Law in context : legal activity and the institutional context -- Procedural constraint : sequentiality, routine, and formal correctness -- Legal relevance : the production of factuality and legality -- From law in the books to law in action : egyptian criminal law between doctrine, case law, jurisprudence, and practice (...) -- The natural person : the contingent and contextual production of legal personality -- The production of causality : a praxeological grammar of the use of causal concepts -- Intention in action : the teleological orientation of the parties to criminal cases -- Morality on trial : structure and intelligibility of the court sentence -- Questions of morality : sequential, structured organization of the interrogation -- The categories of morality : homosexuality between perversion and debauchery. (shrink)

The primary function of the European Court of Human Rights is to ensure that administrative and judicial processes in member states effectively conform to pan‐European Convention standards (‘constitutional justice’) rather than seeking to provide every deserving applicant with a remedy for a Convention violation (‘individual justice’). But, in order to do so effectively some core elements of the Convention's constitution require more deliberate articulation and more consistent application. In seeking to show how this might be achieved, this article argues that (...) three primary constitutional principles—the judicial protection of Convention rights (the ‘rights’ principle), the democratic pursuit of the public interest (the ‘democracy’ principle), and the principle of priority to rights (the ‘priority’ principle), each exercised according to the rule of law—can be distinguished from a cluster of secondary principles which support them in a variety of ways. An analysis of the Convention's key provisions shows, in particular, how the ‘priority’ principle can, and should, operate to give the Court's decisions greater coherence and constitutional authority. (shrink)

France’s agreements on the joint management of migration flows (AJMs) figure centrally within studies of bilateral migration agreements. With their origins in friendship and navigation treaties of the late 19th century, the AJMs are successors to the postcolonial, circular mobility conventions of the 1960s, and are uniquely positioned for periodizing the evolution of bilaterally negotiated labor mobilities. Nonetheless, due to the European Union’s reluctance to embrace mass regularization and the EU Member States’ legislative powers over labor markets, they have time (...) and again scotched France’s ambition to leverage preferential labor market entries in exchange for more cooperation over irregular migration. Through documents and statistical data analysis, this Article studies the case of Senegal’s negotiation of additional pathways to France for its lower-skilled workers. At the center is France’s administrative court of appeals, which has confirmed the broad margin of discretion over Art. 42 in the AJM between France and Senegal. This jurisprudence has decoupled the automatic linkage between a job listed under duress in France under the Annex to the AJM and the entitlement to exceptional admission. We argue that France’s courts have removed a privilege of Senegalese workers, which has re-politicized France’s migration diplomacy with Senegal. At the same time, retention of the prefectorial discretionary power has levelled the playing field among West and North African countries that have concluded similar bilateral agreements with France. This Article adds to the research on bilateral migration agreements by proposing a multilevel legal analysis, which studies AJMs in the context of France’s common law, EU labor and return directives, and the multilateral of WTO/gats liberalization. (shrink)

This chapter contains section titled: The Demands of Political Legitimacy The Received View Persons Courts and Persons References Further Reading.

In the field of ?neurolaw?, reformists claim that recent scientific discoveries from the mind sciences have serious ramifications for how legal responsibility should be adjudicated, but conservatives deny that this is so. In contrast, I criticise both of these polar opposite positions by arguing that although scientific findings can have often-weighty normative significance, they lack the normative authority with which reformists often imbue them. After explaining why conservatives and reformists are both wrong, I then offer my own moderate suggestions about (...) what views we have reason to endorse. My moderate position reflects the familiar capacitarian idea which underlies much lay, legal, and philosophical thinking about responsibility ? namely, that responsibility tracks mental capacity. (shrink)