Judicial reasoning: the production of legal knowledge (original) (raw)

Mátyás Bencze, Gar Yein Ng (eds.): How to Measure the Quality of Judicial Reasoning. Springer, 2018

Hungarian Journal of Legal Studies, 2019

Measuring the unmeasurable'-this is the main concept of the book and it is also the title of the editors' introductory study. This phrase also wonderfully describes the research project's and the authors' hard challenge. To write about something and then to explain its subsequent quality, judicial reasoning in this case is something very unique, individual, complex and different on a case by case basis. The book is edited by Mátyás Bencze and Gar Yein Ng and the volume concentrates on the quality of judicial forums' reasoning method. The project was based on the cooperation between Hungarian Academy of Sciences, Centre of Social Sciences, Institute for Legal Studies and the University of Debrecen, Faculty of Law. The book consists of fifteen studies, conducted with the assistance of several prestigious legal scholars and legal practitioners. The book has two main parts, in which the first contains essays from the perspective of legal theory, legal sociology, philosophy and behavioural law and economics. The other part colligates the main conclusions from the practice of some national and international judicial forums. Judges, judicial decisions and judicial argumentation have always had both academic and societal attention, so it may be thought that the issue is well and widely known. It is an age-old experience that judges have three important challenges: decide every single case they get; decision should be based on written rules; and (last but not least) decision should be fair and just. 1 But what is praxis's reality, would judicial work be this simple or not? It is well advised to think over the problem and to concentrate on the quality of reasoning which has become an accentuated requirement in the past years. The purpose of this research project was to properly answer a difficult question-what is expected from judicial reasoning? Are there any aspects, standards, or scales, which can highlight and measure the quality of judges' work? There are some measuring methods from the legal philosophy tradition, e.g., there are great maxims in Roman law, such as ius est ars boni et aequi, summum ius summa iniuria, etc. Legal culture has also created several famous role-models in connection with judges' reasoning methods; these famous descriptions consist of judges who represent the main features of an ideal decision-maker. 2

THREE THEORIES OF JUDICIAL BALANCING: A COMPARISON

After the Second World War, judicial balancing quickly became a pervasive form of argumentation in Western democracies; more recently, it has been applied almost by default in several Constitutional Courts. Judicial balancing can be considered in all respects as one of the main features of so-called new constitutionalism. It is a concept that is also directly connected with several meta-ethical issues, which in essence concerns the legal implications of value pluralism and the opposition between particularism and universalism. These features raise important methodological and substantial issues that cannot be underestimated.

Debate on the Quality of Judicial Decisions (from Theory to Practice

The judicial decision is much more than compliance with legal norms, the judicial production of the law itself is present. There are methods to optimize judgment by granting it reliability, but the study-debate on optimization mechanisms have been continually disregarded. The process of judicial decision-making is one of the most complex, since this decision escapes in its essence the Theory and Philosophy of Law and fits more deeply into the intimacy of the "agent" of the decision whose universe is to be understood. The authority it judges fulfils a duty of State and at the same time exercises a flexible part of its own obligations and limits in the isolation of its individuality and under the flow of procedures that hang between the content of the decision and its formal externalization, the judgment.The theme of the judicial decision on which this reflection intends to delimit the epistemic fields that law faces: the problem of unlimited space that contemplates the debate on the rational production of decisions and aims to contribute to the advancement of the bases of theoretical and practical rigor necessary for the constitution of a Theory of Judicial Decision. This research seeks to visualize the growing, complex and sophisticated context in which Western democracies have witnessed the increase of rational demands for the improvement of human rights guarantee institutions.

How to Measure the Strength of Judicial Decisions: A Methodological Framework

Although over the last thirty years an increasing number of scientific articles and books with diverse approaches have been published on the practice of constitutional adjudication, several methodological problems still prevail. The main deficiency of the systematic empirical research on constitutional adjudication consist in an unsophisticated dichotomous approach that separates the merely positive and negative decisions of constitutional courts, i.e. decisions that concluded in declaring the constitutionality or unconstitutionality of a given legislative act. This approach has been deeply inconsistent with the worldwide practice of constitutional adjudication, since the latter shows a widespread differentiation of judicial decisions over the last thirty years. In this study, we have elaborated a more sophisticated methodology for systematically mapping the manifold reality of constitutional adjudication, and measuring the strength of judicial decisions. In order to fit the research to reality, we have elaborated a scale to measure the strength of judicial decisions. This scale seems to be an appropriate tool to answer the main descriptive research question of our project: to what extent have decisions of constitutional courts constrained the legislative's room for maneuver? The present methodological paper focuses on the problem how to measure the strength of judicial decisions vis-à-vis the legislation and shows, by means of the first results of a pilot project, how this new methodology might be applied.

Comparative Reasoning and Judicial Review

Yale Journal of International Law, 2003

III. FORMS OF DIALOGUE AND MODELS OF JUDICIAL REASONING ..................................................... 423 A . D ialogic M odel ............................................................................................................... 424 1. Foreign Law and Transnational Dialogue ......................................................... 424 2. Lower Courts, Legislatures, and Local Dialogue ............................................... 427 a. Standards, Balancing, and Normative Reasoning .................................. 428 b. The Supreme Court and Democratic Deliberation ................................. 432 3. Dialogue and Comparative Reasoning ............................................................... 437 B . The Enforcem ent M odel .................................................................................................. 439 1. Foreign Law and the Problem of Coherence ...................................................... 439 2. Lower Courts, Legislat...

The Concept of the Judicial Decision

Case Western Reserve law review, 1983

The judicial decision serves a primary role in the Anglo-American legal system. The judicial decision performs numerous functions including that of precedent for future cases. This Article examines three related aspects of the judicial decisiort First, the author discusses the use of reasons in judicial decisions and concludes that interpretation of a judicial decision requires one to develop an understanding of one's judicial view. Second, this Article analyzes the role of legalforms. Finally, reasoning by analogy is examined The author maintains that the latter is not dferent from reasoning by induction and that true nondeductive reasoning should be called argument by metaphor.

Rule of Law and the Doctrine of Proportionality; Appraisal, Rational and Validation

sjesr, 2021

In Germany, many researchers – including judges – believe that the idea of proportionality should stem from the notion of Rechsstaat. The term, when translated into English, is Rule of Law, and “Etat de Droit” in French. Applying the rule of law as a reason for adopting proportionality as a factor for limiting constitutional rights via the constitutionality of sub-constitutional law has also been implemented by other legal organizations. To understand the liaison connecting the rule of law and the doctrine of proportionality, it is essential to determine whether the proportionality could have a harmony with the values of rule of law in five steps. First, it is necessary to enquire whether the rule of law principle has a constitutional position. Next, it must be determined whether the rule of law as a principle of the constitution includes a feature of Human Rights. Third, we must ascertain whether the rule of law, as a principle of the constitution, is based upon an equilibrium ami...

Proportionality Analysis and Models of Judicial Review

2012

Proportionality analysis describes a particular legal technique of resolving conflicts between human or constitutional rights and public interests through a process of balancing. As a general tendency, the current vivid academic debate on proportionality pays, however, insufficient attention to the institutional context-the question of judicial review. Based on the premise that proportionality analysis is a permissible approach to resolve conflicts between rights and other interests, the present book lays out a strategy for courts and tribunals to deal with the challenge of using proportionality analysis in an adequate manner, taking into account their situation and context of judicial review. For this purpose, it develops the concept of models of judicial review in a first theoretical chapter. These models are then applied to six comparative case studies in German and United States constitutional law, the law of the European Convention on Human Rights, European Union law, World Trade Organisation law and international investment law.