Reflective Judgement and Prudential Rationality: A Contribution to an Inclusive Practical Application of Law

Hannah Arendt has developed a theory of the importance of judgment of taste for political manners, founded on the Kantian aesthetic theory. Nowadays this theory is considered a current theoretical reference for establishing a political way to reconcile the demands of the radicalization of deliberative democracy with the need for political inclusion (Iris Marion Young, Seyla Benhabib). Albena Azmanova in her The Scandal of Reason: A Critical Theory of Political Judgment proposes an inclusive political rhetoric. The political theory founded on judgment is based on Kant’s philosophy; it was developed by Arendt and has greatly influenced the current debate, as an alternative theory in which the moral basis of law can be more sensitive to human contexts; a universalist theory more adequate for dealing with the tragic dimension of human life. The theory of political judgment uses the concepts of reflective judgment and ‘enlarged thought’ as its main concepts. As a starting point, a theory like this considers the singular judgments of justice that each person makes. The background, therefore, is not a rational foundation of principles, but the capacity of rational beings to make judgments. This post-metaphysical theory of law, based on a theory of judgment, is a critique of legal positivism, but presents itself as an alternative to the idealistic theory of law. But this theoretical project has received some criticism related to the adequacy of Arendt’s rereading of Kantian philosophy and her attempt to approximate Kant’s reflective judgment to the Aristotelian concept of phronêsis. Some critics, such as Bryan Garsten, believe that Kant’s rhetoric of public reason diminished and displaced the prudential faculty of judgment that Arendt is to be interested in reviving. Arendt’s attempt to find a theory of judgment in Kant’s aesthetic theory is not successful, in Garsten’s view. Our purpose is to show that a critical theory of judicial judgment is not only possible, but necessary; Arendt’s theory of judgment offers an important contribution to a critical theory of judicial judgment, particularly one devoted to the construction of a legal theory that prioritizes a politics of social inclusion. This theory proposes a critical approach to the project of the procedural conception of democracy, since it can mask social exclusion. An adequate understanding of judicial argumentation cannot forget that it happens in a rhetorical context: it is not only important what a discourse says, but how it says it. The radicalization of deliberative democracy supposes a revision of the ways judicial deliberation is thought: not by reference to universal or at least general principles, but taking into consideration what is ‘critically relevant’, with a view to remedying social injustice (following Azmanova).

     

Emotions and Sentiments in Judicial Deliberation

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique - The traditional perspective on emotions, anchored in the Western philosophical tradition,...     

Can Charitable Donations Compensate for a Reduction in Government Funding? The Role of Information

Are private donors willing to replace cuts in government funding? The authors conducted a survey experiment (n = 2,458) to examine how information about government funding affected decisions to donate money to a large charitable organization in the Netherlands. Providing information about actual budget cuts increased the number of donors. Most new donors were recruited among respondents who had processed the information correctly, underlining the importance of effective communication. The magnitude of the information effect was stronger for citizens with lower levels of empathic concern, who are less likely to donate but can be converted into donors. The authors conclude that policy information shapes not only attitudes but also civic engagement outside the political sphere.     

The ‘Regulatory State’ in Higher Education: Assuring Quality through New Modalities of Control in Brazil

The Brazilian Higher Education (HE) sector, following a global trend of rapid transformation, has undergone marked changes over the past two decades. These changes have involved the design of quality assurance tools as instruments for regulatory governance. In presenting an overview of the recent history and characteristics of quality assurance in the Brazilian HE sector, this paper contextualises the Brazilian experience according to broader conceptual frameworks and discusses how and why regulatory governance in this sector has so radically changed.     

Size calculation of restriction enzyme HaeIII-generated fragments detected by probe YNH24 by comparison of data from two laboratories: the generation of fragment-size frequencies.

Restriction fragment-length polymorphism of locus D2S44 detected by the highly polymorphic probe YNH24 and restriction endonuclease HaeIII can be used to improve parentage testing when representative fragment-size frequencies can be obtained. By joining the results of different laboratories, it is possible to set up a meaningful databank. Therefore, the same randomly chosen samples were tested for the HaeIII RFLP detected by probe YNH24 in Düsseldorf (DUS) and Amsterdam (AMS). The results of the different fragment-size calculations obtained by using internal markers and a computerized system (DUS-cad and AMS-cad), and by using external markers and manual calculations (DUS-man), were analyzed. Comparing these results, no statistically significant differences were seen. The results obtained with probe YNH24 and enzyme HaeIII in Düsseldorf and Amsterdam can be used to attain a sufficient number of samples to generate relevant fragment-size frequencies.     

COPARENTING ARRANGEMENTS IN A JURISDICTION WITH STATUTORY GUIDELINES

Some states have recently moved away from the traditional winner-loser model of child custody to one focused on coparenting. Under the old approach, divorce decrees typically "awarded" custody to one parent while relegating the other to a "visitor" with poorly defined status. The new system is premised on the child's need for a continuing relationship with both parents and promotes this goal by upgrading the noncustodial parent's status and time-share, assigning substantive rights and responsibilities to both parents. To give effect to the shared parenting idea, Texas adopted joint custody and statutory visitation guidelines legislatively. The policy covers all major aspects of parental rights and duties with great specificity (not just child support, for which all states must have guidelines). It applies equally to divorce and paternity cases. Judges are authorized to deviate from standard visitation guidelines but must state a rationale for doing so on request. Parties may also negotiate and agree to arrangements at variance with the guidelines, subject to approval by the court. This article describes the statutory regime in Texas and its implementation in the family court system. Based on a sample of divorce and paternity cases in the state's largest jurisdiction, it documents innovative court interventions and a wide array of coparenting and support arrangements.