Esquisse de typologie de l’argumentation juridique

Résumé  Le but de cet article est de jeter quelques lumières sur le fonctionnement de la polyphonie dans le discours et l’argumentation juridiques, en insistant sur l’importance des notions-clés d’(in)défaisabilité, de présomption, de polyphonie, d’échelle argumentative. Les premiers linéaments d’une théorie générale de l’argumentation juridique sont ici exposés (1). La théorie en question se veut topique (raisonnements défaisables) et logique (raisonnements indéfaisables). Face aux théories unidimensionnelles (réductionnisme logique ou réductionnisme topique) une théorie bidimensionnelle est souhaitable, qui inclue à la fois le traitement des raisonnements défaisables et indéfaisables. Afin de développer cette esquisse de théorie de l’argumentation juridique, plusieurs notions sont définies (2): la défaisabilité (2.1), la présomption (2.2), la polyphonie (2.3), les échelles argumentatives (2.4). Enfin, un tableau général de quelques marqueurs argumentatifs résume les différents r?les que peuvent jouer les arguments dans la polyphonie du droit (3).

Identifying the determinants of aggregate judicial performance: taxpayers’ money well spent?

There have been a sizeable number of studies trying to identify the determinants of judicial performance on the country level. Such a design is appropriate to identify underperforming individual judges or underperforming courts or court districts. However, it is not appropriate to identify institutions conducive to judicial performance. A dataset produced by the European Commission for the Efficiency of Justice contains very detailed information on the judicial systems of the 47 member countries of the Council of Europe. Drawing on robust regressions and using an objective variable, we find that (1) resolution rates are not a function of per capita income. In other words: poor countries can also afford them. (2) Countries belonging to the French legal tradition enjoy relatively lower resolution rates. (3) Resolution rates are negatively—and very robustly—correlated with court budget. As such, a higher budget will not “buy” more court decisions. (4) Resolution rates are never positively correlated with the presence of judicial councils. (5) Mandatory training for judges is correlated with higher resolution rates. Drawing on the subjectively perceived efficiency of the judiciary as the dependent variable we find that (6) countries belonging to both the French and the socialist legal tradition are less efficient and that (7) judicial councils are also negatively correlated with our measure of judicial efficiency, in other words: countries that do not have them should not introduce them.     

The gender gap in populist radical-right voting: examining the demand side in Western and Eastern Europe

ABSTRACT

In most countries, men are more likely to vote for parties of the populist radical right (PRR) than women. The authors argue here that there are two mechanisms that might potentially explain this gender gap: mediation (women's attitudes and characteristics differ from men's in ways that explain the PRR vote) and moderation (women vote for different reasons than men). They apply these two mechanisms to general theories of support for PRR parties—the socio-structural model, the discontent model, and the policy vote model—and test these on a large sample of voters in seventeen Western and Eastern European countries. The study shows that the gender gap is produced by a combination of moderation and mediation. Socio-structural differences between men and women exist, but the extent to which they explain the gender gap is limited, and primarily restricted to post-Communist countries. Furthermore, women generally do not differ from men in their level of nativism, authoritarianism or discontent with democracy. Among women, however, these attitudes are less strongly related to a radical-right vote. This suggests that men consider the issues of the radical right to be more salient, but also that these parties deter women for reasons other than the content of their political programme. While the existing research has focused almost exclusively on mediation, we show that moderation and mediation contribute almost equally to the gender gap.     

A Retreat from Pepper v Hart? A Reply to Lord Steyn

This article shows how the House of Lords has, in recent years,embarked on a retreat from its landmark decision in Pepper vHart which had relaxed the rule prohibiting courts from usingministerial statements made in Parliament for the purpose ofinterpreting statutes. This development was initiated by a lecturegiven by Lord Steyn in May 2000 and subsequently published inthis journal. The article attempts to refute the reasons advancedin support of the retreat. In addition, it sets out to showthat the alternative solution proposed by Lord Steyn createsboth conceptual and practical difficulties. As a result it arguesfor a reversal of the retreat.     

The R&D performance of the South African manufacturing sector, 1970–1993

In this article we undertake a detailed exploration of the research and development activities in one particular middle-income country. We explore what the data from R&D surveys can tell us about the levels, the determinants and the effectiveness of R&D in the manufacturing sector. We point to some of the broader factors that may have influenced South Africa’s drive to improve the technological capacity of its manufacturing sector, but we mostly focus on those issues associated directly with R&D. We show that the degree of interaction between the different domains of R&D activity, business, government and the tertiary sector has been weak, and that the possibility of positive spill-overs between these domains has not been fully exploited. In addition, little or no policy intervention designed to stimulate R&D activity by industry has been deployed in South Africa. We find that South African R&D activity has mainly been reactive in character and suggest that this lies at the heart of South Africa’s mixed R&D performance in relation to other developing countries.