The article describes the functioning of the Judiciary as an element of the political system of modern Russia. The characteristics of the activities of the courts are manifested through the mechanism of judicial discretion, within the framework of which decisions on cases are made. There are two main models used to explain the behavior of judges: based on the law and on the basis of personal preference. In Russian conditions, the most adequate way to explain the behavior of judges on (...) the basis of personal preferences is a strategic approach. According to it judges take into account existing institutional and political restrictions and are guided by the structure of political opportunities that is formed by these restrictions. The latter are due to the “Zone of Power”, the real function of which is to project onto the subject, the prescriptions formed by the current political regime, as well as the application of sanctions for their violation. Such a construction of the Russian political space gives the judicial system the place not of a full-fledged branch of power, but, in fact, of one of the executive state institutions that carry out the functions assigned to it within the framework of general policy. Its institutional characteristics are determined by the universal bureaucratic characteristics of the organization of activities and management, characteristic of the executive branch. Being in the “Zone of Power” significantly complicates the promotion of the concept of Public policy, since it levels the possibilities of horizontal cooperation, designed to be implemented by the principle of competition and equality of the parties. The article concluded that the Judicial system of modern Russia, represented by the acting judges, has abandoned the role of the builder of the field of law in the Public political space. (shrink)

Reason and emotion are often cast as opposites. Yet emotion comes in a wide array of manifestations and has a variety of relations with its supposed opposite. Understanding emotion better is key to grasping how jurisprudence casts the relation between psychology and judicial decision making. Jurisprudents disagree on whether and when (lack of) emotion is a problem for decision makers in the justice system. The aim of this paper is to shed light on unarticulated assumptions in mainstream legal theory concerning (...) this disagreement. The paper plots the different positions jurisprudents hold concerning the role of emotion in judicial decision making, regardless of where they stand on matters such the nature of law. The paper substantiates the claim that legal theorists often take an irrationalist approach to emotion but occasionally develop an alternative account that is closer to a cognitivist approach, the prime example of which is the claim that equity requires practical reasoning. Emotions are then cast as skills to be appreciated. The paper concludes that jurisprudence adopts a simplistic view of emotion. The study of the role of emotion has been hampered by the tendency to view emotions reductively. My classificatory effort warrants the conclusion that lack of emotion – understood as a skill in cognitivist terms – constitutes a problem for justice. (shrink)

Given statements like these about current developments in intellectualizing about law in America it is an exciting time to look at American legal philosophy. Given the ferment in the law schools and the volume of literature in the law journals it is also a difficult task confidently to extract the main lines of current thought and adequately to assess the significance of current intellectual movements. American lawyers are inclined to point out that there is no such thing as ‘American law’. (...) Rather, in addition to Federal law and the Supreme Court's jurisdiction there are some fifty jurisdictions each with its own Constitution, Legislature and Supreme Court and consequently diversity rather than uniformity is the rule. Equally, the very idea that there is some single, coherent and widely accepted theory of law deserving description as ‘American legal philosophy’ obviously begs all manner of significant questions. (shrink)

This article aims at contributing to the discussion about the relationships between ICT, computer science and policy-making by focusing on agent-based social simulation. Enabled, from a technical point of view, by the developments of Distributed Artificial Intelligence in the 1990s and by the features of the object-oriented programming paradigm, agent-based social simulations are a tool for the analysis of social dynamics that can be used also to support the design and the evaluation of public policies. After a brief description of (...) social simulation paradigm and of its impact on social sciences, the paper presents a simple agent-based model devised to analyze, even if in a very abstract way, a phenomenon that can rouse the interest of legal scientists: the interplay between damaging behaviors, punishment and social mechanisms of learning and imitation. Our goal is to show how agent-based simulation can be used not only to illuminate basic mechanisms underlying social phenomena but also to reflect, in an innovative way, on how society can deal with them. (shrink)

Many different kinds of professionals work with law, but often they seek to use law for particular governmental or private purposes, they focus on some specific areas or aspects of its creation, interpretation or application, or they study it for its interest judged by criteria that are given by fields of scholarly practice outside it. Is there a special significance for a role exclusively concerned with analysing, protecting and enhancing the general well-being or worth of law as a practical idea? (...) This article argues that such a role is important. Building on Gustav Radbruch's juristic thought, it asks how that role could be elaborated and how a professional responsibility for discharging it might be envisaged. Many professionals concerned with law adopt such a role incidentally or intermittently, but it needs more prominence and clear demarcation. The article suggests that it might be seen as the specialised role of the jurist, treated as a particular kind of legal professional. The term “jurist” would then have not just an honorific connotation. It would indicate a Weberian “pure” type that may approximate some current understandings of “juristic” practice; but it would also identify a normative ideal—something intrinsically valuable. Seen in this way, the jurist is one who assumes a certain unique responsibility for law. (shrink)

This paper sets out a view of a General Jurisprudence that is needed to underpin the institutionalised discipline of law as it becomes more cosmopolitan in the context of “globalisation”, and considers its implications. Part I restates a position on the mission and nature of the discipline of law and of the role of jurisprudence, as its theoretical part, in contributing to the health of the discipline. Part II clarifies some questions that have been raised about this conception of General (...) Jurisprudence: (i) the implications of “globalisation”; (ii) The meaning of “General Jurisprudence” in this context; (iii) The relationship between Jurisprudence, Legal Philosophy, and social scientific approaches to law; and (iv) The significance of the idea of “non-state law”. Part III illustrates through concrete examples some implications for possible agendas and issues suggested by this model within the areas roughly characterised as analytical, normative, empirical, and critical jurisprudence, including critical analysis of the assumptions and presuppositions typically underpinning mainstream work in fields such ascomparative law, public international law, religious law, and socio-legal studies. (shrink)

The paper suggests a novel methodology for determining the state of legal doctrine on a particular issue by legal scholars. This methodology is inspired by the philosophical field of phenomenology. In particular, the tool of eidetic reduction developed by Edmund Husserl is applied to reach inter-subjectively valid assessments of doctrine. The methodology developed here argues that scholars who wish to discover legal doctrine on a particular issue need to first define general paradigms that explain the relevant legal field. Then, they (...) should develop a hypothesis about the law on the particular issue that concurs with the essential qualities of all these paradigms. Finally, to determine if a hypothesis about the content of the law should be accepted or rejected, it must be checked against legal sources that often include judgments. Reasoning by analogy should be used to learn from judgments with the same policy implications as the doctrine suggested by the hypothesis. The paper offers several heuristics—demonstrated with examples from international law—that can be used to find judgments that have the same policy implications without determining conclusively what these implications are. (shrink)

A variety of theoretical positions are emerging to explain the judicial process from such perspectives as hermeneutics, semiotics, critical theory and argumentation/rhetoric. They ask such questions as these: What is the source of judicial authority? How do judges arrive at their decisions? By what logic are decisions to be tested? In this essay I argue that a focus on decisions and their justifications alone masks the broader process in which judges, along with all the other relevant groups, engage in a (...) continuing and evolving dialogue to structure their normative universe through the complementary processes of dialectic and rhetoric. Contemporary concepts of argumentation can serve to analyze this process critically. (shrink)

A conception of the person as a subjective being plays a crucial, though frequently overlooked, role in the justification of unequal property in liberal theories. Unger's ascription of individualism to general liberal legal theory can be concretely defended with respect to liberal theories of property. Identifying a common fundamental structure calls in question the conventional view that the liberal legal theories rest on an ensemble of different moral foundations. So important is subjective personality to the moral basis for highly unequal (...) property that such property looks to be morally untenable if this concept of the person is invalid. The analysis points to social theory of personality as a major direction for research into an alternative theory of egalitarian property right. (shrink)

This paper analyses the paradigms of interpretation and the evolution of the creative processes in music and law. Whether it is matter of a score or a law, the text is reborn through the work of the interpreter who, in dealing with the epistemological problem of the understanding, has to harmonize the purity of the philological reconstruction of the object with the need to actualize its sense. Moving from the creative character of every interpretation—neither the musician can be reduced to (...) a mere executor of a concatenation of musical symbols on the staff as Stravinsky wanted nor the judge may be conceived as a bouche de la loi according to Montesquieu’s theory—this work, after having discussed Gadamer and Betti’s hermeneutical approaches to music and law, focuses on the issue of the limits to the interpreters’ freedom. The interpretation here proposed revolves around improvisation, seen as a typical cultural practice of the aesthetic dimension of music. Improvisation, which from baroque to jazz does not correspond to the realm of absolute freedom, is used as a trait d’union in order to make a comparison with legal experience. This is particularly true with the development of case law, which becomes increasingly problematic especially in the light of “liquid modernity”, where the “polytheism of values” has been gaining strength. Seen from this perspective, the comparison between the judge and the musician in their activity as interpreters of a formalized system of signs highlights the controversial relationship between form and creativity, the accuracy of the text and the requisites deriving from the social context, certainty and justice. (shrink)

The dominant social scientific approach to studying judicial behavior treats judges as strategic actors pursuing their political preferences under institutional constraint. The intellectual roots of this rational choice approach are in American law’s long but sporadic engagement with pragmatist ideas. This article challenges that approach: a fully pragmatist account of judicial action provides a better description of the intellectual and social work of judging, and better explains how judges reach a decision in difficult cases that most affect the development of (...) law and its relationship to society. The article argues that the foundational intellectual problem for appellate judges is how to define the legal questions presented in a case. Definitions of legal questions arise from the interplay of habitual and creative action in the local social context of an appeals court. Professional and local interpretive habits and legal forms ordinarily do a great deal to define the key questions, which are not strictly determined when a case comes before a court. Unscripted small group interactions at oral arguments also figure in question definition; oral arguments are most important in the rare but legally important cases where habitual practices alone are insufficient to delimit the legal question judges must answer. Supported by extensive interviews with federal appeals judges and clerks, the article illustrates judges’ creative, interactional efforts to define an answerable question in a major asylum case decided in the Seventh Circuit Court of Appeals. Building from this case, the article describes the factors that shape judicial question definition, and describes the conditions when creative judicial action is likely to be most prominent. (shrink)