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Full-Text Articles in Law
When Judges Have Reasons Not To Give Reasons: A Comparative Law Approach, Mathilde Cohen
When Judges Have Reasons Not To Give Reasons: A Comparative Law Approach, Mathilde Cohen
Mathilde Cohen
Influential theories of law have celebrated judicial reason- giving as furthering a host of democratic values, including judges’ accountability, citizens’ participation in adjudication, and a more accurate and transparent decision-making process. This Article has two main purposes. First, it argues that although reason- giving is important, it is often in tension with other values of the judicial process, such as guidance, sincerity, and efficiency. Reason-giving must, therefore, be balanced against these competing values. In other words, judges sometimes have reasons not to give reasons. Second, contrary to common intuition, common law and civil law systems deal with this tension between …
Truth In Adjudication—A Civil/Common Law Divide, Mathilde Cohen
Truth In Adjudication—A Civil/Common Law Divide, Mathilde Cohen
Mathilde Cohen
In both common-law and civil-law jurisdictions, judges have developed distinctive customs and techniques to explain and justify their decisions. They may proceed orally from the bench or through the writing and the publishing of judicial opinions or other accompanying documents, ranging from parties’ briefs, to amici curiae, to press releases, and so forth. The two judicial cultures have established their own restrictions on the range of reasons that are appropriate for judges to mention. The purpose of this paper is to ask whether judges aim at truth when they are engaged in these explanatory and justificatory activities. And if they …
The Social Epistemology Of Public Institutions, Mathilde Cohen
The Social Epistemology Of Public Institutions, Mathilde Cohen
Mathilde Cohen
This article discusses what it means for a decision-maker to have a reason for a decision and to give that reason as a justification for the decision. Indeed, if the relationship is difficult to sort out at the individual, private level, it becomes even more complicated when we move to complex collective entities like public institutions. This is why we need to know under what conditions public institutions may 'have' reasons for their decisions. The article explores the hypothesis that proper ascriptions of reasons to institutions depend on whether they have formally adopted a common set of reasons. I contend …
La Sincérité Peut-Elle Être Une Norme Juridique?, Mathilde Cohen
La Sincérité Peut-Elle Être Une Norme Juridique?, Mathilde Cohen
Mathilde Cohen
No abstract provided.
Sincerity And Reason Giving: When May Legal Decision-Makers Lie?, Mathilde Cohen
Sincerity And Reason Giving: When May Legal Decision-Makers Lie?, Mathilde Cohen
Mathilde Cohen
Public reason-giving is an essential duty of democracies, said to promote better public decision-making by keeping the government’s discretionary powers in check. However, this aim may be compromised if decision-makers cite insincere and misleading justifications as a means of preventing accountability. This Article contributes to rethinking sincerity in legal decision-making by asking both a normative and a descriptive question. The normative question is whether and to what extent public institutions should disclose the reasons for their decisions. The practical question is whether and how the fact that decision-makers have failed to fully disclose their reasons can be established. The generally …
The Rule Of Law As The Rule Of Reasons, Mathilde Cohen
The Rule Of Law As The Rule Of Reasons, Mathilde Cohen
Mathilde Cohen
This paper argues that in contemporary legal thinking, the concept of the rule of law has become inseparable from the idea that legal decision-makers should give reasons to justify their decisions. Yet, how far can the concept of the rule the law be understood as establishing a rule of reasons? I examine whether reason giving is necessarily connected with the rule of law in the sense that a legal system would not conform to the rule of law if its decisions were not supported by publicly articulated reasons. I proceed by arguing that the focus on reason giving vindicates both …
Reasons For Reasons, Mathilde Cohen
Reasons For Reasons, Mathilde Cohen
Mathilde Cohen
This chapter examines some popular justifications for public reason-giving common in liberal political thought. An obvious way of arguing in favor of the duty to give reasons is to point out that publicly substantiating decisions is an intrinsically valuable practice. Giving reasons simply makes for better decision-making. Yet in liberal democracies reasons are increasingly defended on “instrumental” grounds. Giving reasons is valuable because some other value will thereby be realized. Reasons are used for (other) reasons. Reasons become proxies for democratic values. The giving reasons requirement results in getting credit, not so much for increasing the quality of the underlying …
The Rule Of Law As The Rule Of Reasons, Mathilde Cohen
The Rule Of Law As The Rule Of Reasons, Mathilde Cohen
Mathilde Cohen
This paper argues that in contemporary legal thinking, the concept of the rule of law has become inseparable from the idea that legal decision-makers should give reasons to justify their decisions. Yet, how far can the concept of the rule the law be understood as establishing a rule of reasons? I examine whether reason giving is necessarily connected with the rule of law in the sense that a legal system would not conform to the rule of law if its decisions were not supported by publicly articulated reasons. I proceed by arguing that the focus on reason giving vindicates both …
L’Unité De La Justification À L’Épreuve De La Justification Juridique [Justificatory Unification And Legal Justification], Mathilde Cohen
L’Unité De La Justification À L’Épreuve De La Justification Juridique [Justificatory Unification And Legal Justification], Mathilde Cohen
Mathilde Cohen
This paper asks whether the notion of justification can play a unifying role comparable to that of explanation for the sciences. It argues that legal justification poses a challenge to the project of unifying sciences on the basis of justification. To be sure, lawyers import methodological requirements typical of scientific discourse into the law. In particular, following the Aristotelian doctrine of the syllogism and compelled by the popularity of the Deductive-Nomological models of explanation in the 20th century, they often claim to be using a deductivist conception of justification. In practice, however, the justification of legal decisions violates this conception …