Domestic judicial defiance and the authority of international legal regimes

Tensions and occasional overt defiance of international courts suggest that compliance with international regimes is not a self-evident choice for domestic judges. I develop a formal theory of domestic judicial defiance in which domestic and supranational judges vie for jurisprudential authority in a non-hierarchical setting. The model emphasises the role of domestic non-compliance costs and power asymmetries in determining the conduct of domestic and international judges. I argue that the EU represents a special case of a particularly effective international regime. Weak domestic courts have little to gain from an escalated conflict with the European court of Justice. But even domestic judicial superpowers like the German Federal Constitutional Court have strong incentives to seek mutual accommodation with European judges. The analysis also yields new insights into concepts, such as “judicial dialogue” and “constitutional pluralism” that have featured prominently in the legal literature, and suggests new hypotheses for empirical research.     

论违宪审查在东欧国家转型中的作用

东欧转型在法制方面的一项重要内容是普遍建立以宪法法院为审判机构的集中违宪审查制度。宪法法院通过对宪法文本中法治原则的阐释以实现国家转型的法治目标。宪法法院阐释的法治原则内容具体包括法的安定原则、分权原则、合比例原则、司法独立原则和基本权利司法救济保障原则等五项原则。     

The impact of “empirical facts” on legal scholarship and legal research training

Lawyers have traditionally viewed law as a closed system, and doctrinal research has been the research methodology used most widely in the profession. This reflects traditional concepts of legal reasoning. There is a wealth of reliable and valid social science data available to lawyers and judges. Judges in fact often refer to general facts about the world, society, institutions and human behaviour (“empirical facts”). Legal education needs to prepare our students for this broader legal context. This paper examines how “empirical facts” are used in Australian and other common law courts. Specifically, the paper argues that there is a need for enhanced training in non-doctrinal research methodologies across the law school curriculum. This should encompass a broad introduction to social science methods, with more attention being paid to a cross-section of methodologies such as content analysis, comparative law and surveys that are best applied to law.     

National Judges,Community Judges: Invitation to a Journey through the Looking‐glass—On the Need for Jurisdictions to Rethink the Inter‐systemic Relations beyond the Hierarchical Principle

The historical conflict between the European Court of Justice (ECJ) and the national constitutional courts regarding primacy is a misunderstanding. In going through the looking‐glass, we can understand that, on the contrary, the ECJ and the national constitutional courts adopt comparable solutions in their treatment of legal pluralism, and that they see the negation of pluralism as essential for the survival of their own legal orders. Therefore, these judges must be offered a new theoretical context to help them reconcile their role as supreme guardian with the taking into account of the pluralist context. Finally, practical proposals must be made to give judges the instruments and techniques that are capable of reflecting this plural structure.     

Gustav Radbruch vs. Hans Kelsen: A Debate on Nazi Law*

Abstract. Can the label “law” apply to rules as amoral as the enactments of the Nazis? This question confronted the courts in Germany after 1945. In dealing with it, the judges had to take sides in the philosophical debate over the concept of law. In this context, the prominent voices of the legal philosophers Gustav Radbruch and Hans Kelsen could not go unheard. This paper draws on what could have been the “Radbruch‐Kelsen debate on Nazi Law.” In examining the debate, it will argue for a substantive account of the morality of the law, as expressed in Radbruch's Formula.     

Carl Schmitt on the Secularisation of Religious Texts as a Resacralisation of Jurisprudence?

Carl Schmitt, an increasingly influential German law professor, developed a provocative and historically oriented model of “political theology” with specific relevance to legal scholarship and the authorship of constitutional texts. His “political theology” is best understood neither as an expressly theological discourse within constitutional law, nor as a uniquely legal discourse shaped by a hidden theological agenda. Instead, it addresses the possibility of the continual resurfacing of theological ideas and beliefs within legal discourses of, for instance, sovereignty, the force of law and states of emergency (or “exception”) that present themselves as relentlessly secular, even—in the case of Kelsenian jurisprudence—”scientific”. This article illustrates and then critically evaluates Schmitt’s theory in terms of the authorship of constitutional texts in particular. It includes two case studies—genocidal colonial land appropriation and Kelsenian positivism in order to illustrate aspects of his political theology. Whilst Schmitt is defended against reductionist interpretations, I show that there remains considerable unfinished business before a Schmittian approach to legal theory merits full acceptance.     

Karl Olivecrona on Judicial Law‐Making

The Scandinavian Realist Karl Olivecrona did not pay much attention to questions of legal reasoning in his many works. He did, however, argue that courts necessarily create law when deciding a case. The reason, he explained, is that judges must evaluate issues of fact or law in order to decide a case, and that evaluations are not objective. Olivecrona's line of argument is problematic, however. The problem is that Olivecrona uses the term “evaluation” in a sense that is broad enough to cover not only evaluations, including moral evaluations, but also considerations that are not evaluations at all, and therefore his claim that judges must evaluate issues of law or fact in order to decide whether a case is false.     

经济法规的合宪性审查标准——基于对美国联邦最高法院判例的考察

对法律文件的违宪审查是我国合宪性审查体系的重要组成部分。在美国的违宪审查实践中,针对法律所涉及的内容,分别存在着合理审查、中等审查和严格审查等不同的审查标准。对于经济领域的法律,一般采用合理审查标准,但近年来在涉及言论自由的经济领域,其审查标准往往会提高。在我国的合宪性审查制度中,如果法院在个案审判中发现法律存在违宪嫌疑时,可以建立向最高人民法院移送的机制,并通过听证程序进行充分论证以决定是否向全国人大常委会提出合宪性审查请求。在审查中,对于我国的经济法律不宜直接采用合理审查标准,而应提高审查标准。     

Dialogue with Dictators: Judicial Resistance in Argentina and Brazil

Throughout the world, judges are often asked to implement the repressive measures of authoritarian rulers. Which conception of legal interpretation and judicial role, if any, make judges more likely to resist such pressures? That question, central to Anglo-American jurisprudence since the Hart-Fuller debate, is addressed by examining recent military rule in Argentina and Brazil. In Argentina, judges were sympathetic to military rule and so criticized its “excesses” in the jurisprudential terms favored by the juntas: positivism and legal realism. Brazilian judges, by contrast, were largely unsympathetic to military rule, and so couched their criticism in terms of natural law, in order to raise larger questions and reach a broader public. Empirical study of the cases and conceptual analysis of existing theories both reveal that no view of legal interpretation inherently disposes its adherents to either accept or repudiate repressive law. Contingent political circtrmstances—the rulers’favored form of legal rhetoric, and the degree to which judges accept the need for a period of extra-constitutional rule—determine which legal theory fosters most resistance. But since most authoritarian rulers nominally affirm their constitutional predecessors’positive law and are often unwilling to codify publicly their most repressive policies, strict literalism usually offers the most congenial idiom for judicial resistance to such regimes.     

From Helping Court to Community‐Based Services: The 30‐Year Evolution of Australia's Family Relationship Centres

As a centrepiece of Australia's 2006 family law reforms, the community‐based Family Relationship Centres (FRCs) represented a major development in the Government's commitment to incorporate family relationship services into its family law system. This paper sees FRCs as a logical development of the original conceptualising the Family Court of Australia as a “helping court”. The paper suggests that the aspiration to create a helping court was partially achieved in 1976 via the creation of an in‐house family court counselling service, which was primarily focused not on law and legal principles, but on supporting the ways in which family members were managing the task of redefining relationships. While generally valued by judges and others, this service nonetheless found itself in tension with the Family Court's continued primary commitment to legally informed and adversarially driven negotiation and decision‐making processes. Since 2006, the creation of FRCs has spearheaded a family law system that provides relationship‐focused interventions away from the courts as the default option for most parenting disputes. Consistent with this aim, there is evidence of a diminished percentage of cases now requiring judicial intervention. The 2006 legislation also provides for courts to conduct “less adversarial trials.” Paradoxically, this has occurred alongside unequivocal evidence from the Australian Institute of Family Studies’ evaluation data that judicial officers are dealing mainly with families displaying seriously dysfunctional attitudes and behaviours. The legal challenge in dealing with these cases is for courts to provide child focused, fair and non‐destructive internal processes. In addition, however, it is increasingly clear that to support and help facilitate their decisions, courts also need good working relationships with FRCs and other community based services. FRCs and the 2006 reforms offer the possibility of moving beyond the ideal of a “helping court” to the broader concept of helping family law system.     

论作为民法法源的“法理”

我国《民法典》第10条未将“法理”规定为第三位阶的法源。在理论上,除少数学者反对设立第三顺位法源外,多数学者赞同规定第三顺位法源,惟对其原因基本未详尽展开。无论是从法源条款的性质、使法源条款真正具有实益、为法律“续造”提供合法性基础的角度来看,还是从《民法典》已赋予法官较广泛司法权、我国民事法官依“法理”填补法律漏洞成为较为普遍的现实来看,抑或从发挥法理的“学科沟通功能”来看,确立第三顺位法源均有其必要性。从立法技术来看,将第三顺位法源表述为“民法基本原则”并非最优,仍以“法理”的表述为宜,因为“法理”的内涵与外延比“(民法)基本原则”更为丰富。除民法基本原则外,“法理”可能是非属民法基本原则范畴的民法基本原理、未明定的民法原则;此外,“法理”也可能是制定法乃至习惯法上的法律原则。     

Genealogy and Jurisprudence: Nietzsche, Nihilism, and the Social Scientification of Law

In Twilight of the Idols, Nietzsche presents a history of metaphysics that can also be read as a history of jurisprudence. Nietzsche shows how—via Platonism, Christendom, Kantianism, and utilitarianism—the “real” or “true” world of ideals gives way to an “apparent” phenomenal world that is itself ultimately brought into question. This article shows how 20th-century legal thought, broadly construed, also moves away from “ideals” of law toward an understanding of law as observable social phenomena. It suggests that the move to the “apparent” world in legal thought raises questions similar to those raised by Nietzsche's work: Does sociological law point to a nihilistic destruction of the legal tradition or to a joyous possibility of overcoming that tradition?     

The Law of the Land

This article considers the status of foreign precedents in national courts. It examines possible reasons for courts referring to them and concludes that, absent some incorporating convention, judges cannot ever be said to have an obligation to refer to them. But it also shows that there is nothing unprincipled about national courts choosing to treat foreign precedents as persuasive authority, notwithstanding that there are some good reasons, especially in the context of constitutional adjudication, for cautioning against this. It is also suggested that no satisfactory argument can be adduced to support the proposition that a national court must never rely on foreign precedent as the sole reason for modifying the indigenous common law – though it seems very unlikely that judges would ever need (still less want) to rely on foreign precedent in this way.     

Jurisprudence and Communication: Secular and Religious

In considering Van Schooten’s study of the Eric O. case (s.1), I ask whether the different approaches taken by the two different “legal institutions”—the prosecuting authorities on the one hand, the courts on the other—are reflective of different images of warfare (a semantic difference) or of the different images each group holds of its own role (a pragmatic difference). If we consider these two “legal institutions” as distinct semiotic groups (s.2), is there an inevitable “communication deficit” (Van Schooten) between them (and the public) and how does this relate to the Hartian account of such a “crisis in communication” (s.3)? I agree with Van Schooten about the role of underlying images in the construction of legal sense, and relate this to the issue of intuitional judgment, both in and outside the law (s.4). I then turn to comparable issues which arise in my other research area, Jewish law, which reflects quite different ideological premises (s.5), reviewing the original (biblical) conception of the (intuitive) role and functions of judges (s.5A), decision-making, justification and consequentialist ethics in postbiblical Jewish law (s.5B), and the conclusions drawn, not least for the pragmatics of communication, in a recent research study on the wife’s rights in divorce. Paradoxically, I argue (s.5C), that the system rests at base on trust rather than objective truth. But trust, too, is a form of meaning, and susceptible to semiotic analysis. I suggest, in conclusion (s.6), that this is an issue which should be treated more seriously in the theory of secular law and legal communication.     

Lowering the Bar: Privileged Court Filings as Substitutes for Press Releases in the Court of Public Opinion

In the civil lawsuit against Kobe Bryant for sexual assault, the judge admonished lawyers for engaging in “public relations litigation”—the use of pleadings to attract media attention and try cases in the court of public opinion. This article examines the legal ramifications of such practices and the doctrines of law that encourage some lawyers and litigants to use pleadings as a form of press release. These include the law of republication and the fair report and judicial privileges as well as the power of judges to gag trial participants. The article concludes that courts have adequate tools to control such practices, and lawyers and public relations professionals can responsibly use court documents to communicate with the public, so long as they do not abuse the judicial process.     

Why Should Justice Be Seen to Be Done?

A well-known maxim instructs that justice should be seen to be done. When “seen” is understood in the sense of “observed”, the maxim is easily defended: open court proceedings protect against arbitrary and partial decisions. However, when “seen” is understood in the sense of “seem,” the maxim is more puzzling, since it is not obvious why courts should concern themselves with people's perceptions that justice has been done. This article addresses this issue, with a particular focus on the social and other benefits that result when judges observe procedures that are widely regarded as fair, especially in criminal trials. The article draws on empirical studies in social psychology that show that when legal authorities treat people in ways that accord with “lay” procedural expectations, they are more likely to view the authorities as legitimate, to cooperate with them, and to obey the law out of an internalized sense of obligation. The article explores the moral significance of these empirical findings, arguing that it would be superficial to see them as a recipe for social stability. The deeper truth conveyed by the empirical research is that relating to people in ways that are widely perceived to be fair is a way for authorities to engage people's moral sentiments and to enliven their virtuous capacity to put aside considerations of self-interest so as to do what is right. This dynamic provides a sound moral foundation for courts to concern themselves with perceptions of justice.     

中华法系的百年历史叙事

回顾中国现代法学的世纪历程,中华法系的历史叙事主要在进化论、民族论和法治论三种语境中展开。不同语境中的法史学者,通过将中华法系与其他法系相比较,揭示出了彼此有别的中华法系之历史面貌。在进化论语境中,中华法系因其古.老而落后,丧失了型构现实生活秩序的生命力,需整体性地予以批判和否定。在民族论语境中,中华法系因其系统性、连续性和民族性而独具特色,整理、发掘、重述其历史谱系,既有助于增强民族文化自信力,也为重建“新中华法系”提供了重要的精神前提。在法治论语境中,中华法系以其“治乱之道”和“良法善治”的血缘伦理身份内涵表明,在前现代社会中法律不可能获得型构社会生活秩序的权威地位。法制现代化是不同语境下中华法系之历史叙事的共同追求,中华法系研究的百年学术史,实质上是一部追求法治文明的中国现代精神史。     

Judges as satisficers: a law and economics perspective on judicial liability

If judges are guardians of the law, who is to protect the individual member of society from the occasional corrupt, malicious, or reckless judge? The aim of this paper is to provide an answer to the last part of this question, focusing more heavily on cases of negligently inflicted harm. Departing from Simon’s bounded rationality and influenced by other constructs in behavioral law and economics, we view judges as satisficers who make decisions within real-world constraints, such as imperfect information and uncertainty, cognitive limitations and erroneous information. Judges are limited by the commonly observed barriers to the decision making process. Because their goal is not to optimize but to render opinions that are merely satisfactory, they often act as poor agents of their principals’ interests. In this light, it becomes clearer why judges tend to engage in behavior that is “improper”, especially under the circumstances of the currently overloaded judicial caseloads. We first address the differences in judges’ roles in Anglo-American and Continental legal systems. We then present our simple model for judicial misbehavior based on an understanding of judges as “satisficers”. Next we discuss the particularities of judicial errors and introduce a realistic and viable construct of “inexcusable judicial error”. On this basis we evaluate the impact of various incentive schemes on judicial behavior, focusing on the civil liability of judges. We conclude that civil liability for grave judicial errors is the most adequate remedy.     

Judges as Readers,Authors and Dialecticians: Legal Interpretation in the EC<Emphasis Type="Italic">t</Emphasis>HR Cases on Mental Disability

The wording of major human rights texts—constitutions and international treaties—is very similar in those provisions, which guarantee everyone the right to family, privacy, protection against discrimination and arbitrary detention, and the right to access the court. However, judges of lower national courts, constitutional judges and judges of the European Court of Human Rights often read the same or seemingly the same texts differently. This difference in interpretation gives rise not only to disputes about the hierarchy of interpretative authorities, but to more general disputes about limits of judicial construction and validity of legal arguments. How it may happen, that the national courts, which apply constitutional provisions or provisions of national legislative acts, which are seemingly in compliance with the international human rights standards, come to different results with the international judges? Do they employ different interpretative techniques, share different values or develop different legal concepts? Do international judges ‘write’ rather than ‘read’ the text of the Convention? Who is, in Plato’s terms, a name-giver and who has a power to define the ‘correctness’ of names? The answers to these questions from the rhetorical and semiotic perspectives are exemplified by the texts of the judicial decisions on the rights of persons with mental disabilities.     

Law and the Evolutionary Turn: The Relevance of Evolutionary Psychology for Legal Positivism

In the present essay, I consider the relevance of evolutionary psychology (EP) for legal positivism, addressing the two main traditions in the legal positivist family: (1) the tradition I identify with the works of Hart and Kelsen and characterize as “normativist,” as it tries to describe law as a purely or, at least, as an essentially normative phenomenon, while remaining true to the ideal of scientific objectivity and value‐neutrality; (2) the tradition I broadly refer to as “legal realism,” which equates law with adjudication and “legal science” with the task of explaining judicial behaviour.