Culture Of Justification Research Articles

Представления российских специалистов сферы детства о доказательном подходе и их ожидания от взаимодействия с научным сообществом

<p>The article presents the results of the qualitative study of Russian child welfare service professionals’ attitudes towards evidence-based practice. Based on a reflexive thematic analysis of interviews with the professionals from 12 social service organizations several themes have been developed and discussed: 1) evidence-based practice as an important current trend, the connection to which gives several advantages (greater attraction for donor organizations and clients, peer recognition); 2) evidence-based practice as an opportunity to master a new culture of justification and communication; 3) evidence-based practice as a search and organization of new forms of interaction with the scientific community. Russian social service professionals tend to accept the instrumental understanding of the evidence-based practice that is transmitted to them by foundations, donor organizations and the expert community, however, their image of practice as a complex activity that requires taking into account many factors and referring to various sources of knowledge can potentially become the basis for more advanced multifaceted and critical understanding of the evidence-based practice – provided the support of such an understanding, including from the scientific community.</p>

The Right to Justification and the Culture of Justification

The Right to Justification and the Culture of Justification

Climate Disruption in Canadian Constitutional Law: References Re Greenhouse Gas Pollution Pricing Act

Abstract This analysis considers the Supreme Court of Canada’s decision in References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, in which a majority of the Court upheld as constitutional national carbon pricing legislation. The decision presents an excellent illustration of the legally-disruptive nature of climate change. Illustrating that nothing is static in a climate disrupted world—including constitutional law—this article identifies three shifts the Court makes in relation to climate disruption. First, the decision represents a shift away from climate denialism towards a judicial willingness to confront the environmental, social and legal implications of climate change for Canada. Second, the majority embraces and perhaps strengthens a ‘culture of justification’ in climate decision-making. Third—and more tentatively—the majority moves beyond the erasure of Indigenous peoples from Canadian federalism but still yet fails to engage with Indigenous laws and jurisdiction as part of Canada’s constitutional response to climate change.

DE-LINKING UBUNTU: TOWARDS A UNIQUE SOUTH AFRICAN JURISPRUDENCE

The adoption in 1993 of the interim Constitution of the Republic of South Africa Act (200 of 1993) as the supreme law of the Republic marked a watershed moment in the history of South Africa. It was a moment of transition for which the interim Constitution was to serve as a bridge. In the words of the post-amble: “This Constitution provides a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.” (Under the section titled: “National Unity and Reconciliation”.) Given the volatile political context within which South Africa’s transition was negotiated, the drafters of the Constitution saw fit to append a postamble in which they called for the “need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation” (under the section titled: “National Unity and Reconciliation”). For a country where the traditional legal discourse has been the domain of Western liberal values, the inclusion of an African value of ubuntu in the Constitution was in itself “a historic bridge”. In the words ofEtienne Mureinik, if this bridge is to “span the open sewer of violent and contentious transition” those who are entrusted with its upkeep need to know where the bridge is from and where it is leading to. For Mureinik, the interim Constitution is a bridge away from a culture of authority to a culture of justification where every exercise of power must be justified.

Closing Places of Worship and COVID-19: Towards a Culture of Justification?

Closing Places of Worship and COVID-19: Towards a Culture of Justification?

A plea for proportionality: A reply to Yun-chien Chang and Xin Dai

Abstract After a survey of the proportionality principle and its discontents (irrationality, conceptual flaws, and bias), this article addresses the dual remedy proposed by proportionality critics, which consists in: (i) skipping the first to third prongs of the proportionality analysis (legitimate objective, suitability, and necessity) and (2) concentrating on balancing in the metric form of a cost-benefit analysis. I argue that discarding the three prongs, and thus abandoning the asymmetrical structure of the sequential proportionality analysis, would kill off the specific quality and function of rights which is to constitute a special protection that triggers the obligation to explain and justify interference. Although recent empirical studies have demonstrated that the proportionality test indeed does not deliver predictable legal outcomes, a simple cost-benefit analysis is worse. It would not secure more reliable outcomes either but only offers a sham-rationality. Assigning numbers to the goods and interests at stake cannot replace the work of a multidimensional assessment and argumentative explanation in natural language which is needed for making not only a sound, but also a transparent and thus contestable, decision. What legal life needs is a culture of justification, not a culture of calculation.

Beyond Reasonableness: The Dignitarian Structure of Human and Constitutional Rights

The last two decades have witnessed a wide-ranging and global discussion of the theory and structure of human and constitutional rights. This debate initially focused on the principle of proportionality and subsequently on the related ideas of the ‘culture of justification’ and the ‘right to justification.’ There is now a far-reaching agreement that both proportionality and justification in human and constitutional rights law are concerned with the reasonableness, alternatively the justification in terms of public reason, of the act under consideration. Thus, reasonableness and/or public reason have assumed a, perhaps the, central place in the theory of human and constitutional rights.

Beyond Reasonableness: The Dignitarian Structure of Human and Constitutional Rights

Human and constitutional rights theory in the last two decades focused initially on the principle of proportionality and subsequently on the ideas of the ‘culture of justification’ and the related ‘right to justification’. The view that emerged from these discussions is that proportionality is essentially a reasonableness test and that, correspondingly, human and constitutional rights are centrally concerned with reasonable justifications. This essay criticises the focus on reasonableness which neglects the core substantive promise of rights, namely their commitment to human dignity. It argues that the three dignitarian principles of intrinsic value, moral autonomy, and fundamental equality form the substantive core of rights, and it demonstrates that this is consistent with and creates a stronger moral foundation for contemporary rights adjudication and the culture of justification.

Climate Disruption in Canadian Constitutional Law: References re Greenhouse Gas Pollution Pricing Act

This analysis considers the Supreme Court of Canada’s decision in References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, in which a majority of the Court upheld as constitutional national carbon pricing legislation. The decision presents an excellent illustration of the legally-disruptive nature of climate change. Illustrating that nothing is static in a climate disrupted world—including constitutional law—this article identifies three shifts the Court makes in relation to climate disruption. First, the decision represents a shift away from climate denialism toward a judicial willingness to confront the environmental, social and legal implications of climate change for Canada. Second, the majority embraces and perhaps strengthens a “culture of justification” in climate decision-making. Third—and more tentatively—the majority moves beyond the erasure of Indigenous peoples from Canadian federalism but still yet fails to engage with Indigenous laws and jurisdiction as part of Canada’s constitutional response to climate change.

Vavilov and the Culture of Justification in Contemporary Administrative Law

Vavilov and the Culture of Justification in Contemporary Administrative Law

A unified model of public law: Charter values and reasonableness review in Canada

The Supreme Court of Canada concluded in its 2012 judgment in Doré that the rational connection test and the less restrictive means inquiry from the Oakes analysis are not useful when assessing the justifiability of administrative decisions limiting Charter rights. The Court instead articulated a ‘robust’ conception of proportionality that requires administrative decision makers to demonstrate only that any rights limitations that their decisions impose are proportionate ‘in the strict sense.’ This article argues that Charter values should be understood as part of a normative hierarchy of ‘justificatory resources’ to which administrative decision makers can refer in justifying rights-limiting decisions as proportionate in the strict sense. It argues further that the robust, reasons-first conception of reasonableness that the Court described in Vavilov affirms Doré’s logical architecture, marking a shift in Canadian jurisprudence toward a ‘culture of justification.’ In adopting the same approach to constitutional decisions affecting Charter rights and administrative decisions that do not engage the Charter, Doré and Vavilov construct a unified model of public law in which all public decisions must be shown to be justified by their congruence with a hierarchy of norms which has Charter values at its apex. In this unified model of public law, in which a robust conception of reasonableness is central, it is not clear what room, or need, is left for correctness review.

‘Loose’ Proportionality Review in the European Monetary Union’s ‘Law of the Crisis’: A Sign of Decline of the ‘Culture of Justification’?

In reviewing legal acts adopted in the context of the economic-financial crisis, proportionality finds frequent application. However, case-law at both national and Union’s level displays elements of a loose proportionality review, as Courts hardly dare to challenge the substance of the decisions negotiated by law-makers. The article argues that loose proportionality is tied to a departure from the juridical roots of the referring concept, which lie in a ‘culture of justification’ as alternative to a ‘culture of authority’ in the exercise of public power. In this light, it provides analysis of the case-law concerned to show that the decisions taken at the political level do not seek their legitimacy in dialogical justification, but find it in the alleged assumption that they represent the optimal ‘reasonable solution’ for all Member States, despite the painful inequalities they entail. As they prove somehow alien to the cultural-juridical roots of the concept, they cannot undergo a fully-fledged proportionality scrutiny. Yet, this may signpost the gradual comeback of a ‘culture of authority’ requiring careful reflection, as it would touch upon the very conception of the human person as capable of self-determination – arguably, the cornerstone of contemporary constitutional arrangements. Proportionality, Economic-Monetary Union, Judicial Review, Sovereignty, Crisis, Reasonableness, Fundamental Rights, Self-Determination.

Administrative “Determinations of Law” and the Limits of Legal Pluralism after Vavilov

As the doctrine of judicial review has matured, Canadian courts have become increasingly attuned to the role that administrative agencies play in maintaining the rule of law. The courts have recognized that in order for administrative agencies to function effectively, they must have some freedom to interpret their statutes. Accommodation of nonjudicial interpretations of law, however, has limits. While the courts have often addressed jurisdictional limits in Diceyan terms, they have also addressed the structural limitations that flow from the nature of delegated discretion. These limitations make it impossible for administrative agencies to make determinations of law as courts do. Most agencies do not have the power to create binding policy or otherwise resolve ambiguities in their enabling statute. Rule of law concerns may arise from the resulting uncertainty as much as from questions of vires. Administrative agencies are unable to settle constitutional questions, questions of central importance to the legal system, or jurisdictional disputes between agencies. Settling ambiguity in existing law is a function that only the courts can perform. Nonetheless, the legitimacy of law-making by nonjudicial institutions within their limits has long been recognized in the common law world. This article describes the development of legal pluralism regarding the sources of law in Canadian jurisprudence. The article then examines the extent to which Vavilov’s new framework for reasonableness review articulates how nonjudicial decision-makers might manifest the rule of law within a “culture of justification.”

A Tale of Two Doctrines: Revaluating Bifurcation in Substantive Review before the Supreme Court

Debates over bifurcation in substantive review persist; should Wednesbury review subsist alongside a proportionality-based model, or should substantive review depend solely upon proportionality? Drawing on an analysis of UK Supreme Court decisions between 2014 and 2018, we argue that the academic debate and much recent jurisprudence misconstrue substantive review. Both proportionality and Wednesbury display their own internal (“intra-doctrinal”) bifurcation between judge-centric and deferential approaches. Although proportionality’s application under the Human Rights Act 1998 has generated culture of justification in rights cases, fixation on the test’s rights/aims balancing aspects has embroiled judges in value adjudication. Faced with preferring either legal or policy aims, the Court has at times fluctuated between strong and weak oversight. Traditional Wednesbury review, while methodologically distinct, can also swing between highly deferential reasonableness review and more robust review drawing, for example, on statutory purpose. Substantive review thus currently risks contradictory pathologies; deploying legal trumps to preclude political decision making and permitting clear policy failures. These pathologies stem from UK public law’s inadequate engagement with substantive decision making. We therefore re-evaluate functionalist constitutionalism, advancing an active functionalist model which urges public lawyers, outwith instances of illegality, to maximise institutional effectiveness. By prioritising legitimacy as an organising principle for judicial review, this approach sustains political decision making within the bounds of a liberal democratic order.

Administrative ‘Determinations of Law’ and the Limits of Legal Pluralism After Vavilov

As the doctrine of judicial review has matured, Canadian courts have become increasingly attuned to the role that administrative agencies play in maintaining the rule of law. The courts have recognized that in order for administrative agencies to function effectively, they must have some freedom to interpret their statutes. Accommodation of nonjudicial interpretations of law, however, has limits. While the courts have often addressed jurisdictional limits in Diceyan terms, they have also addressed the structural limitations that flow from the nature of delegated discretion. These limitations make it impossible for administrative agencies to make determinations of law as courts do. Most agencies do not have the power to create binding policy or otherwise resolve ambiguities in their enabling statute. Rule of law concerns may arise from the resulting uncertainty as much as from questions of vires. Administrative agencies are unable to settle constitutional questions, questions of central importance to the legal system, or jurisdictional disputes between agencies. Settling ambiguity in existing law is a function that only the courts can perform. Nonetheless, the legitimacy of law-making by nonjudicial institutions within their limits has long been recognized in the common law world. This article describes the development of legal pluralism regarding the sources of law in Canadian jurisprudence. The article then examines the extent to which Vavilov’s new framework for reasonableness review articulates how nonjudicial decision-makers might manifest the rule of law within a “culture of justification.”

The implications of the decision in Helen Suzman Foundation v Judicial Service Commission 2018 (7) BCLR 763 (CC) 8 on the functioning of the South African Judicial Service Commission

ABSTRACT The article examines the implications of the judgment of the Constitutional Court in Helen Suzman Foundation v Judicial Service Commission 2018 (7) BCLR 763 (CC) 8 on the functioning of the Judicial Service Commission (JSC). The judgment has brought to the fore a new lease of life relating to the JSC's post-interview deliberations as a disclosable record in terms of Rule 53(1)(b) of the Uniform Rules of Court. The disclosure seeks to provide an insight into the decision-making process of the JSC in the appointment of judicial officers in South Africa. It is argued that the judgment is two-pronged: first, the disclosure of the post-interview record enhances the culture of justification for decisions taken, which advances the foundational values of the new democratic dispensation; secondly, it creates uncertainty about the future management and protection of the JSC processes in the undertaking of robust debates on the post-interview deliberations. It then questions whether the JSC members will be privileged in their engagement with the suitability of the candidates to be recommended for appointment by the President. The question is raised against the uncertainty about which decision of the JSC will be challenged that will need the disclosure of the record because the judgment does not entail the national disclosure of the record in respect of each candidate but applies only when there is an application for review of the JSC decision. Key words: Judicial Service Commission, appointments, discretion, judiciary, independence, rule of law, discretion, accountability, transparency, human rights.

The Culture of Justification and Public Reason: Comments on the Motion of Members of the Polish Parliament to the Constitutional Tribunal

The aim of the paper is to demonstrate how the culture of justification and the public reason can serve as legitimacy device in legal justifications. The idea of the culture of justification, proposed by David Dyzenhaus, makes an interesting contribution to the discussion on how to make headway with the problem of determining the limits of public authority. Applying Ron den Otter’ test of a reasonable sceptic, the author argues that the culture of justification becomes a good political and moral tool for limiting the exercise of public authority, if such a culture is understood and explained in light of the idea of public reason.

Artificial Administration: Administrative Law in the Age of Machines

We live in the era of Big Data and we are now entering the world of artificial administration, where governmental bodies will replace or displace human decision-makers with information technology. A clash of value systems is or will soon be upon us, between technologists who insist on the power of correlation and lawyers who refuse to yield on the time-honoured fundamentality of causation. In this paper, I map out the terrain for the conflicts to come and offer some thoughts as to how they might be resolved. Information technology has, in principle, the capacity to improve the accuracy and efficiency of administrative decision-making, so figuring out how such systems can be integrated into existing regulatory schemes is an important and difficult task. My primary thesis is that thinking about the norms of administrative law is a useful first step in determining the appropriate scope of the use of information technology in public administration. One of the most profound controversies about artificial administration relates to its opacity as, unlike decisions made by humans, the reasoning processes used by techniques such as neural nets defy explanation and justification in conventional terms, undermining the safeguards of legality, rationality and procedural propriety which courts have attempted to require of administrative decision-making processes. I nonetheless identify conditions in which artificial administration would be an appropriate addition to the administrative decision-making toolkit. My secondary thesis is that these controversies provide a platform for consideration of the role of artificial administration in administrative decision-making. Moreover, they prompt reflection on a deeper question – which norms will shape the future of public administration, the solution-driven boosterism of Silicon Valley technologists or the culture of justification of public law jurists? I will note that artificial administration can be integrated into existing decision processes in a manner respectful of existing norms of administrative law. But I will also identiy norms which technologists could internalise. If they were to do so, the potential for future tension would be greatly reduced. Where tension exists it is mostly because of the opacity problems generated by artificial administration, involving the use of technology which is inexplicable in human terms. If those responsible for designing artificial administration put their energies into building systems which are capable of satisfying administrative law norms of justification, transparency and intelligibility, its integration into public administration will be much smoother and much less controversial.

A ‘Culture of Justification’? Police Interpretation and Application of the Human Rights Act 1998

The near-exclusive focus of public law scholarship on judges as the interpreters and appliers of the Human Rights Act 1998 is entirely understandable given the judiciary’s constitutional role to authoritatively determine the scope of human rights law. But what I want to suggest in this paper is that if we extend our gaze just a bit further, into the realm of public administration, there are parallel communities of interpretation whose understandings and applications of human rights are well worthy of examination in their own right. The paper presents a case study of one such ‘interpretive community’ to explore what a ‘culture of justification’ within public administration might look like: the public order commanders of the Police Service of Northern Ireland, tasked with policing contentious parades and protests. The paper introduces a ‘culture of justification’ as an aspirational vision of public administration and the merits of an empirically-grounded inquiry of it. Marshalling data from qualitative research with the PSNI, the paper examines the legal training and advice police commanders are given to promote a rights-based approach to public order policing. It proceeds to explore how human rights law is practised by commanders, revealing how they use human rights to manage positive duties, as well as ‘trouble’ from police oversight bodies.

The Survival of Reasonableness Review: Confirming the Boundaries

Predictions have been made about the inevitable demise of judicial review of executive action on the grounds of ‘reasonableness’ for some time. This is especially heightened as and when other substantive grounds of judicial review — for example, proportionality and review for material error of fact — emerge and gain traction. It is argued that these newer grounds are much better suited to the task of reviewing the substance of executive decision-making and they, therefore, reduce the appetite for reasonableness review. This paper considers judicial attempts to retain such review in England, Australia and Canada, notwithstanding the flourishing of other substantive grounds of review. It evaluates the reasons, particular to each jurisdiction, for retaining reasonableness review. In the English context, it could be a useful tool to slow down advances in the scope of review. In the Australian context, it could be a suitable vehicle for the incremental expansion of substantive review relative to proportionality, in a way that is not too disruptive of the relatively conservative approach to judicial review on questions of substance. In the Canadian context, it is the only counterpoint available to correctness as a standard of review in the area of substantive review. It could be argued that the retention of a standard of review — like reasonableness — that has a tendency towards deference is misplaced in an era where there appears to be a growing interest in strengthening a culture of justification in the executive through stronger judicial review. Here the aims of the paper are modest. It is not being suggested that reasonableness review should be the sole or primary ground for substantive review. Instead, the paper argues that there is some merit in retaining a tool that is more readily capable of a deferential application (relative to proportionality or correctness as standards of review). The merit of reasonableness review lies in its cautious approach rather than its potential to grow into a strong or sufficient tool of review and, indeed, it is not necessary for it to do so in today’s substantive review landscape.