The Requirement of Reasons for Findings of Fact
University of Haifa - Research Authority
International Community Law Review, Vol. 8, Nos. 2-3, pp. 223-245(23), September 2006
In recent years, various common law jurisdictions have been inclined to impose upon courts an obligation to give reasons for their findings of fact. This trend has not been free of criticism. Alongside those who cite the conventional argument that such an obligation would unduly burden the judicial system, a more fundamental critique has been suggested by Ronald Allen and Gerald Seniuk. Allen and Seniuk claim that the nature of factual reasoning, and the fact that this process is not transparent to the fact finder herself, doom the requirement of reasons to failure.
This article attempts to examine the desirability of a requirement of reasons for findings of fact in light of this fundamental critique. I will endeavour to show that while the basic, important insights at the heart of Allen and Seniuk's critique do relate to essential elements of the process of factual reasoning, they leave other aspects of this process enigmatic or problematic. This is the case, in particular, regarding the character of claims on matters of fact put forward by litigating parties. I contend that within these, additional aspects of the reasoning process the requirement of reasons would be beneficial. Consequently, I suggest a rethinking of the scope of the reasons that should be required, and a conceptual reappraisal of the nature of the requirement of reasons on findings of fact: rather than conceive of the process of giving reasons as one in which the fact finder must raise beyond the brink of consciousness the considerations that led her to her decision, we should see this process as one of critical review, employed by the fact finder to constrain the intuitive, subconscious sphere in which initial impressions are conceived.
Keywords: Reasons, Findings of fact, Transparency, Appellate Review, Conceptual shift
JEL Classification: K00, K10, K14, K19, K20, K29, K30, K39, K40Accepted Paper Series
Date posted: May 25, 2008
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