Judges Or Hostages? The Bureaucratization Of The Court Of Justice Of The European Union And The European Court Of Human Rights, Mathilde Cohen
Dec 2016
Judges Or Hostages? The Bureaucratization Of The Court Of Justice Of The European Union And The European Court Of Human Rights, Mathilde Cohen
Mathilde Cohen
Court staff occupy a critical position in the administration of justice around the world. They typically represent a diverse corps of subordinated professionals whom judges delegate responsibilities for multiple aspects of their adjudicative and administrative functions. The Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) are no strangers to this practice. The size and influence of their non-judicial personnel is striking, raising the question of whether judges have become hostages to the bureaucracy in their own courts. Drawing on the emerging field of the sociology of European institutions, this chapter argues that …
The French Prosecutor As Judge. The Carpenter’S Mistake?, Mathilde Cohen
Dec 2016
The French Prosecutor As Judge. The Carpenter’S Mistake?, Mathilde Cohen
Mathilde Cohen
In France as elsewhere, prosecutors and their offices are seldom seen as agents of democracy. A distinct theoretical framework is itself missing to conceptualize the prosecutorial function in democratic states committed to the rule of law. What makes prosecutors democratically legitimate? Can they be made accountable to the public? Combining democratic theory with original qualitative empirical data, my hypothesis is that in the French context, prosecutors’ professional status and identity as judges determines to a great extent whether and how they can be considered democratic figures.
The French judicial function is defined more broadly than in the United States, …
The French Case For Requiring Juries To Give Reasons. Safeguarding Defendants Or Guarding The Judges?, Mathilde Cohen
Dec 2015
The French Case For Requiring Juries To Give Reasons. Safeguarding Defendants Or Guarding The Judges?, Mathilde Cohen
Mathilde Cohen
This chapter provides a descriptive and analytical examination of the requirement for lay jurors to give reasons for their decisions. In the 2010 case of Taxquet v. Belgium, the European Court of Human Right announced a new right for criminal defendants “to understand verdicts.” This jurisprudence has prompted a number of Council of Europe countries to overhaul their criminal procedure, including France, which now requires that its mixed courts, in which professional and lay judges deliberate collectively, justify their decisions on guilt or innocence. Descriptively, the chapter presents the Strasbourg court’s position as well as the French response to …
On The Linguistic Design Of Multinational Courts — The French Capture, Mathilde Cohen
Dec 2015
On The Linguistic Design Of Multinational Courts — The French Capture, Mathilde Cohen
Mathilde Cohen
This Article discusses the importance of language in the institutional design of European and international courts, which I refer to as “linguistic design.” What is at stake in the choice a court’s official or working language? Picking a language has far-reaching consequences on a court’s composition and internal organizational culture, possibly going as far as influencing the substantive law produced. This is the case because language choices impact the screening of the staff and the manufacture of judicial opinions. Linguistic design imposes costs on non-native speakers forced to use a second (or third) language and confers a set of advantages …
When Judges Have Reasons Not To Give Reasons: A Comparative Law Approach, Mathilde Cohen
Dec 2014
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 …
Ex Ante Versus Ex Post Deliberations: Two Models Of Judicial Deliberations In Courts Of Last Resort, Mathilde Cohen
Dec 2013
Ex Ante Versus Ex Post Deliberations: Two Models Of Judicial Deliberations In Courts Of Last Resort, Mathilde Cohen
Mathilde Cohen
This Article discusses supreme and constitutional courts’ internal organizational cultures, that is, the way in which justices organize their work and establish informal decision-making norms. Courts of last resort are often presented as exemplary deliberative institutions. The conference meeting, which convenes judges in quiet seclusion to debate, has been glorified as the most significant step in a court’s decision-making process. Based in part on qualitative empirical research, I argue, however, that French, American, and European Justices may not deliberate in the full sense that deliberative democrats have theorized. The Article distinguishes two types of high court deliberations, which I call …
Truth In Adjudication—A Civil/Common Law Divide, Mathilde Cohen
Dec 2013
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 …
Les Cours Souveraines Et Leur Nouveau Public, Mathilde Cohen
Dec 2013
Les Cours Souveraines Et Leur Nouveau Public, Mathilde Cohen
Mathilde Cohen
At the beginning of the Twentieth century, a strong high court, be it national or supranational, represents a guarantee of democracy and rule of law against political parties and other organizations’ particular interests (at the national level) and states (at the international level). The push for reason-giving is a key factor in this new institutional order. Requiring that judges explain their decisions is no longer, or at least not exclusively, a tool for monitoring them and keeping them in check. Quite the reverse, reason- giving has become a legitimatizing factor for judicial power.
The Social Epistemology Of Public Institutions, Mathilde Cohen
Dec 2010
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
Dec 2010
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
Dec 2009
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
Dec 2009
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
Dec 2009
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
Dec 2009
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
Dec 2008
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 …
L'Épreuve Orale. Les Magistrats Administratifs Face Aux Audiences De Reconduite À La Frontière, Mathilde Cohen
Dec 2008
L'Épreuve Orale. Les Magistrats Administratifs Face Aux Audiences De Reconduite À La Frontière, Mathilde Cohen
Mathilde Cohen
This article studies a special type of deportation hearings and its status in French administrative courts. Until a 2006 legislative reform, this proceeding was the only one in French administrative litigation giving rise to hearings where all the parties were present, including: the claimants, their counsel, and the representatives of the immigration agency. Each party could set out its case and cross-examine the other party. The paper analyzes the way in which administrative judges deal with this irruption of orality in their work, traditionally dominated by a written procedure, and the meaning they give to the hearing in (re)defining their …
Reason Giving In Court Practice: Decision-Makers At The Crossroads, Mathilde Cohen
Dec 2007
Reason Giving In Court Practice: Decision-Makers At The Crossroads, Mathilde Cohen
Mathilde Cohen
According to liberal democratic theory, public institutions’ practice—and sometimes duty—to give reasons is required so that each individual may view the state as reasonable and, therefore, legitimate. Does the giving of reasons in actual court practice achieve these goals? Drawing on empirical research carried out in a French court, this Article shows that, in practice, reason-giving often falls either short of democracy or beyond democracy. Reasons fall short of democracy in the first case because they are transformed from a device designed to “protect” citizens from arbitrariness into a professional norm intended to “protect” the judges themselves and perhaps further …
On The Linguistic Design Of Multinational Courts—The French Capture, Mathilde Cohen
Dec 19
On The Linguistic Design Of Multinational Courts—The French Capture, Mathilde Cohen
Mathilde Cohen
This Article discusses the importance of language in the institutional design of European and international courts, which I refer to as “linguistic design.” What is at stake in the choice a court’s official or working language? Picking a language has far-reaching consequences on a court’s composition and internal organizational culture, possibly going as far as influencing the substantive law produced. This is the case because language choices impact the screening of the staff and the manufacture of judicial opinions. Linguistic design imposes costs on non-native speakers forced to use a second (or third) language and confers a set of advantages …
