Abstract

http://ssrn.com/abstract=1131329
 
 

Footnotes (59)



 


 



Reason-Giving in Court Practice: Decision-Makers at the Crossroads


Mathilde Cohen


UConn Law


Columbia Journal of European Law, Vol. 14, No. 2, 2008

Abstract:     
This Article examines the thesis according to which the practice of giving reasons for decisions is a central element of liberal democracies. In this view, public institutions' practice, and sometimes duty, of reason-giving is required so that each individual may view the state as reasonable and therefore, according to deliberative democratic theory, legitimate. Does the giving of reasons in actual court practice achieve these goals?

Drawing on empirical research carried out in a French administrative court, this Article argues 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 their career goals. In the second case, reasons go beyond democracy because judges' ambitions are much greater than to merely provide petitioners with a ground for understanding and criticizing the decision: they aim at positively, and paternalistically in some instances, guiding people's conduct. The discussion proceeds by drawing attention to social aspects that are often neglected in theoretical discussions on reason-giving.

A skeptical conclusion is suggested: one can rarely guarantee that any predetermined value will be achieved by the giving of reasons. The degree to which individuals are empowered by the reasons given to them is dependent on the way in which decision-givers envision their reason-giving activity, and this representation is itself conditioned by the social setting of the court.

Number of Pages in PDF File: 20

Keywords: Justification, Immigration Law, Courts, Adjudication, Judges, Administrative Law, French Law, Reasons, Democracy

JEL Classification: K40, K41, Z00

Accepted Paper Series





Download This Paper

Date posted: May 11, 2008 ; Last revised: September 4, 2008

Suggested Citation

Cohen, Mathilde, Reason-Giving in Court Practice: Decision-Makers at the Crossroads. Columbia Journal of European Law, Vol. 14, No. 2, 2008. Available at SSRN: http://ssrn.com/abstract=1131329

Contact Information

Mathilde Cohen (Contact Author)
UConn Law ( email )
65 Elizabeth Street
Hartford, CT 06105
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,191
Downloads: 191
Download Rank: 93,216
Footnotes:  59

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.344 seconds