“The Duty to Act Fairly”: Ethics, Legal Anthropology, and Labor Justice in the Manual Workers Union of Botswana

2014 ◽  
Vol 56 (2) ◽  
pp. 479-507 ◽  
Author(s):  
Pnina Werbner
Keyword(s):  
Legal Anthropology ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Public Sector Union ◽  
High Court ◽  
Legitimate Expectations ◽  
Public Ethics ◽  
Judicial Reasoning ◽  
Court Of Appeal

AbstractThis paper analyses the significance of the Botswana High Court and Court of Appeal judgments of a case in which the Manual Worker Union, a blue-collar public sector union, challenged the Botswana Government to reinstate dismissed workers with all their past benefits. I examine the role of public ethics and morality in Botswana as reflected in key notions used by High Court judges, such as “the duty to act fairly” and “legitimate expectations,” and argue that legal anthropologists have neglected such ideas, despite their having become a bedrock of contemporary judicial reasoning. While anthropology has shown a renewed interest in ethics, issues of public ethics and morality remain relatively unexplored in contemporary legal anthropological debates. One has to go back to the work of Max Gluckman on reasonableness in judicial decision-making among the Barotse to find foundational anthropological insights into the morality and ethics of law in non-Western societies. In the legally plural context of Botswana, notions of equity and fairness, this paper argues, “permeate” the legal landscape.

Equity and certainty in contract law

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 141-176
Author(s):  
F Brand
Keyword(s):  
Supreme Court ◽  
Contract Law ◽  
Constitutional Court ◽  
High Court ◽  
Contractual Relationships ◽  
The Supreme Court ◽  
The Subject ◽  
Court Of Appeal ◽  
Do So

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

Do Not Ignore the Elephant... Exploring the Role of Intuition and Experience in Judicial Decision-Making

2021 ◽  
Author(s):  
Linda Tvrdíková
Keyword(s):  
Decision Making ◽  
Legal Theory ◽  
Legal Reasoning ◽  
Normative Theory ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Deliberative System ◽  
Experiential System ◽  
Analytical System

If we look at the literature about judicial decision-making and interpretation of law, we can find many texts which are dedicated to legal arguments, logic and legal reasoning – in those texts the rationality, analytical and logical thinking is glorified and an interpretation seems ‘just’ as a logical operation where judges subsume certain facts under general legal norm or norms, those norms are formulated linguistically, so it seems that the whole job of judges is to analyze texts. What we can see more rarely are discussions and texts exploring the role of intuitions, feelings and emotions and their role in judicial decision-making – at least in the Czech Republic. Those of our faculties are seen as the source of bias and distortion. Even if we look to the past, those themes are not so common among legal theorists and philosophers – especially in our tradition where we are still influenced by Hans Kelsen and František Weyr and their normative theory – but we can find exceptions and those are the American legal realists. In this paper, we will show that their observations and insights seem to be right. How can we know it? Because in last decades cognitive scientists have made big progress in the area of decision-making and it seems that we are not so rational as we thought us to be. They have explored that our thinking does not take place only through the deliberative system but, surprisingly, there is also another one system which influences our decisions. This system is automatic, fast, and intuitive – some call this system S1, Seymour Epstein an experiential system. This automatic system is more influential than our deliberative system because it is always heard – we can use Jonathan Haidt’s metaphor of an elephant and a rider. S1, the intuitive, experiential system, is an elephant and S2, the deliberative, analytical system is the rider – in legal theory, we have talked about the rider a lot but we do not explore the elephant sufficiently. This paper will try to uncover the nature of the elephant.

Expertise Fails to Attenuate Gendered Biases in Judicial Decision-Making

2018 ◽  
Vol 10 (2) ◽  
pp. 227-234 ◽  
Author(s):  
Andrea L. Miller
Keyword(s):  
Decision Making ◽  
Gender Ideology ◽  
Controlled Experiments ◽  
Judicial Decision ◽  
Trial Court ◽  
Judicial Decision Making ◽  
Legal Decision Making ◽  
Subject Matter Expertise ◽  
Relative Differences

Although the influence of gender ideology on lay decision-making has been established, it is not known to what extent expertise may mitigate gendered biases and improve decision-making quality. In a set of controlled experiments, trial court judges and laypeople evaluated a hypothetical child custody case and a hypothetical employment discrimination case. The role of expertise was tested in two ways: by comparing judges’ and laypeople’s decision-making and by examining relative differences in expertise among judges. Judges were no less influenced by litigant gender and by their own gender ideology than the lay sample. Judges with greater subject-matter expertise were also no less influenced by gender ideology than other judges. In some cases, expertise was associated with greater, not less, bias. The results of this study suggest that expertise does not attenuate gendered biases in legal decision-making.

Traumatic Experiences and Juvenile Amenability: The Role of Trauma in Forensic Evaluations and Judicial Decision Making

2010 ◽  
Vol 40 (5) ◽  
pp. 363-380 ◽  
Author(s):  
Christina L. Riggs Romaine ◽  
Naomi E. Sevin Goldstein ◽  
Elizabeth Hunt ◽  
David DeMatteo
Keyword(s):  
Decision Making ◽  
Traumatic Experiences ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Forensic Evaluations

Law in Judicial Decision-Making

2017 ◽  
Author(s):  
David Klein
Keyword(s):  
Decision Making ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Theoretical Inquiry ◽  
New Strategy

Years of effort by many talented and creative scholars to gauge the influence of law on judicial decision-making have produced payoffs, but the payoffs do not seem commensurate with the work that has gone into producing them. After reviewing some of the most important approaches and findings, this chapter identifies key obstacles to progress and suggests a new strategy for making more headway against them. The strategy begins by recognizing that ultimately the questions driving empirical and theoretical inquiry into law’s influence are often less about law itself than about the propriety of judicial decision-making. The chapter concludes with suggestions for empirical questions to complement more familiar ones about the role of law in judges’ decisions.

Historical Institutionalism and Judicial Decision-Making

2017 ◽  
Vol 70 (1) ◽  
pp. 53-85 ◽  
Author(s):  
Erik Bleich
Keyword(s):  
Decision Making ◽  
Hate Speech ◽  
Analytical Framework ◽  
Historical Institutionalism ◽  
Judicial Decision ◽  
Change Over Time ◽  
Judicial Decision Making ◽  
High Court ◽  
Original Dataset ◽  
Over Time

This article integrates insights from different veins of historical institutionalism to offer an analytical framework that specifies how ideas, institutions, and actors account for key aspects of judicial decision-making, including change over time. To the extent that ideas are widely distributed, highly salient, and stable among actors in the judicial field, they can affect patterns of rulings in a particular issue area. The distribution, salience, and stability of norms, however, may change over time for reasons embedded in the institutional structures themselves. Existing policies, laws, or treaties create the potential for new actors to enter the judicial field through processes that theorists of institutional change have identified as intercurrence, displacement, conversion, layering, and drift. New actors can shift the relative salience of ideas already rooted in the judicial field. This ideational salience amplification can alter patterns of judicial decision-making without the fundamental and often costly battles involved in wholesale paradigm change. French high court hate speech decisions provide the context for the development of this framework and serve to illustrate the dynamic. The author uses evidence from an original dataset of every ruling by the French Court of Cassation regarding racist hate speech from 1972 through 2012 to explain the varying propensity of the high court to restrict speech that targets majorities compared to minorities.

Do Women Judges Make a Difference? An Analysis by Appeal Court Data

1993 ◽  
Vol 8 (1) ◽  
pp. 135-148 ◽  
Author(s):  
Peter McCormick ◽  
Twyla Job
Keyword(s):  
Decision Making ◽  
The United States ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Men And Women ◽  
Women Judges ◽  
Appeal Court ◽  
Participation Of Women ◽  
General Statistical ◽  
Court Of Appeal

AbstractGiven the recent penetration of the judicial profession by women, and concomitant speculation about the possible impact of women judges upon judicial decision-making, the authors examine criminal appeals to the Alberta Court of Appeal between 1985 and 1992 to address in general statistical terms the parameters of the participation of women judges. The results suggest that there is little statistically identifiable difference in the performance of men and women judges, even on specific issues such as sexual assault offenses, and what modest differences can be found are in the opposite direction from those suggested by comparable research in the United States

scholarly journals La adjudicación judicial: modelos de racionalidad jurídica y particularidades de la decisión judicial en materia de salud

2020 ◽  
pp. 29-46
Author(s):  
Lucía Irene Lapenta
Keyword(s):  
Decision Making ◽  
Right To Health ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Judicial Reasoning ◽  
The Right

Este artículo presenta un análisis sobre las particularidades del razonamiento judicial en materia de salud, en el marco de los modelos de racionalidad material. A tal fin, se analizan cinco fallos jurisprudenciales y se ofrecen algunas reflexiones en relación con el razonamiento judicial subyacente, identificando aquellos elementos que caracterizan la toma de decisión judicial en materia de salud.   This article presents an analysis of the specifications in judicial reasoning in health matters, with reference to models of material rationality. To do that, we analyze five jurisprudential decisions and offer some reflections in relation to the underlying judicial reasoning, identifying those elements that characterize the judicial decision making regarding the Right to Health.

scholarly journals Why Attacks on Civic Space Matter in Strasbourg: The European Convention on Human Rights, Civil Society and Civic Space

2019 ◽  
pp. 13-37
Author(s):  
Antoine Buyse
Keyword(s):  
Human Rights ◽  
Civil Society ◽  
Case Law ◽  
European Convention ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
European Court ◽  
Civic Space ◽  
Work First

This article explores the role of the European Convention on Human Rights in addressing the issue of attacks on civic space, but also the potential effects of shrinking civic space on Strasbourg’s work. First, an overview of the notions of civil society and civic space is given, linking these concepts to democracy and human rights. Subsequently, the formal and informal roles for civil society in the judicial decision-making are discussed. Finally, the substantive protection offered to civil society and civic space under the ECHR and the case-law of the European Court of Human Rights is analysed. This article argues that the differentiations in theory on the varying contributions of civil society to democracy and human rights are to a large extent reflected in Strasbourg jurisprudence. Even more importantly, the ECHR system and civil society benefit from each other. This is why the current attacks on civic space are not just a problem for civil society itself, but also for the work of the European Court: it is submitted that a shrinking of civic space can also negatively affect the Strasbourg system, as the two are intertwined to a considerable extent.Received: 06 July 2019Accepted: 10 October 2019Published online: 20 December 2019

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