Possibility of Court's Creativity in Judicial Decision-Making Process in Common Law and Civil Law Systems (Croatian)

2011 ◽  
Author(s):  
Nejra Oric
Keyword(s):  
Decision Making ◽  
Common Law ◽  
Civil Law ◽  
Decision Making Process ◽  
Judicial Decision ◽  
Judicial Decision Making

scholarly journals Unrepresented litigants in Singapore: A prolegomenon to court typologies

2021 ◽  
Vol 11 (2) ◽  
Author(s):  
Helena Whalen-Bridge
Keyword(s):  
Decision Making ◽  
Dispute Resolution ◽  
Common Law ◽  
Legal Issues ◽  
Decision Making Process ◽  
Legal Knowledge ◽  
Judicial Decision ◽  
Legal Doctrine ◽  
Judicial Decision Making ◽  
Resolution Process

Unrepresented parties in litigation struggle with legal doctrine and puzzle over procedure. Judges provide some assistance in court, but they must exercise restraint so as not to raise questions of bias or favouritism. How do judges manage these interactions in the decision-making process? This article examines sample cases from one common law jurisdiction, Singapore, to identify the litigant in person (LIP) typologies in court-LIP interactions. There are likely a number of typologies that guide a court’s assessment and response to an LIP, but this article focuses on the typologies most relevant to judicial decision-making on legal issues, legal knowledge and credibility. Because legal knowledge and credibility typologies help courts evaluate LIPs, they assist courts to make decisions regarding unrepresented parties and allow cases to proceed to judgment. However, the typologies are not able to completely address the deficiencies LIPs bring to the dispute resolution process.

scholarly journals Interpreting change through legal culture: the case of the Irish exclusionary rule

Legal Studies ◽  
2021 ◽  
pp. 1-18
Author(s):  
Claire Hamilton
Keyword(s):  
Decision Making ◽  
Common Law ◽  
Legal Culture ◽  
Macro Level ◽  
Judicial Decision ◽  
Exclusionary Rule ◽  
Judicial Decision Making ◽  
The Common ◽  
Law Of Evidence

Abstract The changes to the Irish exclusionary rule introduced by the judgment in People (DPP) v JC mark an important watershed in the Irish law of evidence and Irish legal culture more generally. The case relaxed the exclusionary rule established in People (DPP) v Kenny, one of the strictest in the common law world, by creating an exception based on ‘inadvertence’. This paper examines the decision through the lens of legal culture, drawing in particular on Lawrence Friedman's distinction between ‘internal’ and ‘external’ legal culture to help understand the factors contributing to the decision. The paper argues that Friedman's concept and, in particular, the dialectic between internal and external legal culture, holds much utility at a micro as well as macro level, in interrogating the cultural logics at work in judicial decision-making.

The Judge as Paterfamilias

2019 ◽  
pp. 331-349
Author(s):  
Gerald J. Postema
Keyword(s):  
Decision Making ◽  
Common Law ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Proper Understanding ◽  
Abuse Of Power ◽  
Radical Critique ◽  
Proper Definition ◽  
Definition Of ◽  
Utilitarian Theory

Following his radical critique of Common Law, both as a system of laws and as a theory of adjudication, Bentham embarked on a career-long attempt to produce an alternative which more adequately meets the criteria of his background utilitarian theory. This chapter focuses on his theory of adjudication. In his view, the proper definition of the judicial role and a proper understanding of the nature, scope, and limits of judicial decision-making could only be achieved by attempting to solve central problems of the design of adjudicative institutions and procedures. The principle on which he based his construction of adjudicative institutions was drawn from his analysis of the defects of Common Law, especially his view that it is self-defeating to attempt to structure judicial decision-making by means of fixed rules in order to constrain arbitrariness and abuse of power.

scholarly journals Internalizing Contestation in Process-Based Judicial Review

2019 ◽  
Vol 20 (8) ◽  
pp. 1167-1181
Author(s):  
Laura M. Henderson
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Theoretical Basis ◽  
Decision Making Process ◽  
Constitutional Theory ◽  
Judicial Decision ◽  
Constituent Power ◽  
Judicial Decision Making ◽  
European Stability Mechanism

AbstractThe cases challenging the European Stability Mechanism in Eurozone creditor states show the concern courts have with protecting and promoting democratic contestation. This Article shows how John Hart Ely’s theory of process-based review provides the theoretical basis for understanding how attention to democratic contestation contributes to the legitimacy of courts reviewing legislation against constitutional norms. By focusing on promoting democratic procedures, Ely argues that courts can avoid substantive decisions that are best left to the legislature. Yet, as my discussion of the constitutional theory of constituent and constituted powers shows, no form of constituted power can avoid some exercise of constituent power. In other words, even a process-based approach cannot avoid substantive judgments. The legitimacy of these decisions depends on the availability of avenues for contestation in the judicial decision-making process itself.

The judicial pursuit of the sexual victimization of children

2016 ◽  
Vol 23 (2) ◽  
pp. 123-144
Author(s):  
Josep M Tamarit Sumalla ◽  
Mª Jesús Guardiola Lago ◽  
Albert Padró-Solanet ◽  
Patricia Hernández-Hidalgo
Keyword(s):  
Decision Making ◽  
Criminal Justice ◽  
Justice System ◽  
Decision Making Process ◽  
Judicial Decision ◽  
Sexual Offences ◽  
Judicial Decision Making ◽  
Factors Associated ◽  
English Speaking ◽  
Low Rate

This article analyses the criminal justice system’s treatment of those sexual offences against children of which it is made aware. The findings reported in this article draw on a quantitative study based on data ( n = 97) taken from judicial files from a province of Catalonia, Spain. The study examines prosecution, trial and conviction rates, analysing the possible variables involved to provide a better understanding of the reasons behind the successful prosecution of complaints made. The study points to a low rate of prosecution, similar to other studies carried out in English-speaking countries. This leads us to conclude that differences in legal systems do not give rise to significant differences in dealing with cases. There is no evidence that a legalistic system such as that of Spain acts as a restraining element against the influence of non-legal factors in the judicial decision-making process. However, similarities with other studies are not found with regards to some factors associated with it. The findings provide no confirmation of the hypothesis that the Spanish criminal justice system is particularly reluctant to prosecute cases of intrafamilial victimization.

scholarly journals Book Review: Moseneke D All Rise: A Judicial Memoir (Pickado Africa Johannesburg 2020)

2021 ◽  
Vol 24 ◽  
pp. 1-6
Author(s):  
Hoolo 'Nyane
Keyword(s):  
Decision Making ◽  
Decision Making Process ◽  
Constitutional Court ◽  
Judicial Decision ◽  
Same Sex ◽  
Judicial Decision Making ◽  
Chief Justice

The contribution is the review published by former Deputy Chief Justice, Dikhang Moseneke, about his illustrious 15-year term in the Constitutional Court as both the judge and Deputy Chief Justice. The book uniquely provides a rare window into the dynamics of judicial decision-making at the apex court. Often, legal academics only interact with the judiciary through the judgements. Yet, Moseneke gives the reader much more to the judicial decision-making process than just the judgements. The book further traverses one of the most controversial aspects of the Constitutional Court’s jurisprudence, such as same-sex marriages, succession to chieftainship.

Reform of Charity Law in Hong Kong and Australia: What Lessons Can Be Learned from the United Kingdom?

2011 ◽  
Vol 6 ◽  
pp. 1-23
Author(s):  
John Kong Shan Ho ◽  
Rohan Bruce Edward Price
Keyword(s):  
Decision Making ◽  
Hong Kong ◽  
United Kingdom ◽  
Judicial Review ◽  
Common Law ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Government Department ◽  
The United Kingdom ◽  
Charity Commission

AbstractSince 2001, a number of common law jurisdictions have initiated reforms to their charity law and the United Kingdom has taken the lead. This article examines what Hong Kong and Australia can learn from the United Kingdom in reforming their own outdated and fragmented charity laws. It is contended that the lessons and experiences of the United Kingdom provide good insights for Hong Kong and Australia as each jurisdiction anticipates implementing a broadly similar regime to the United Kingdom's to modernize regulation of their charity sectors. This article contends that there is no need to make a choice between retaining judicial decision-making over charities (inconsistent as it is) and establishing a type of charity commission which makes determining charitable status akin to a decision of a government department. Instead, Hong Kong and Australia can have charity commissions with missions that are sensitive to their own legal terrains but which are subject to judicial review.

scholarly journals Transparency in Predictive Algorithms: A Judicial Perspective

2021 ◽  
Author(s):  
Md. Abdul Malek
Keyword(s):  
Decision Making ◽  
Black Box ◽  
Decision Making Process ◽  
Judicial Decision ◽  
High Stake ◽  
Judicial Decision Making ◽  
Predictive Algorithm ◽  
Predictive Algorithms ◽  
Good Cause ◽  
Privacy Invasion

<p><i>Although the apparent hyperbole about the promises of AI algorithms has successfully entered upon the judicial precincts; it has also procreated some robust concerns spanning from unfairness, privacy invasion, bias, discrimination, and the lack of legitimacy</i><i> to the lack of transparency</i><i> and explainability</i><i>, </i><i>etc.</i><i> Notably, critics have already denounced </i><i>the current use of the </i><i>predictive algorithm in the judicial decision-making process in many ways, and branded them as ethically, legally, and technically distressing.</i><i> So contextually, whereas there is already an ongoing transparency debate on board, this paper attempts to revisit, extend and contribute to such simmering debate with a particular focus from a judicial perspective. Since there is a good cause to preserve and promote trust and confidence in the judiciary as a whole, a searchlight is beamed on exploring how and why justice algorithms ought to be transparent as to their outcomes, with a sufficient level of explainability, interpretability, intelligibility, and contestability. This paper also ends up delineating the tentative paths to do away with black-box effects, and suggesting the way out for the use of algorithms in the high-stake areas like the judicial settings.</i></p>

scholarly journals FEMINIST PERSPECTIVES ON TORT LAW

2013 ◽  
Vol 25 (1) ◽  
pp. 265-272
Author(s):  
Carol Brennan
Keyword(s):  
Decision Making ◽  
Civil Law ◽  
Tort Law ◽  
Case Law ◽  
Human Face ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Tort System ◽  
Feminist Perspectives ◽  
The Way

Janice Richardson and Erika Rackley (eds), Routledge 2012, ISBN 978-0415619202 Price £80.00 hbBecause it is the area of civil law with a distinctly human face, students often initially find tort law accessible; sometimes deceptively so. Early on, they are introduced to the importance of policy in the development of case law. Often this policy is not articulated, so a skill must be developed of reading between the lines, in order to discern the influence upon judicial decision-making of concerns such as those about the ‘floodgates’, or perhaps defensive practice. But additionally, both students, their teachers and users of the tort system, must be appraised that explicit assertions about ‘policy’ are premised upon much more fundamental and elusive assumptions about the way society does or should operate.

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