Fair Jurisprudence Research Articles

Six decades of Moltmann’s Theology of Hope and tangible hope in South Africa today

Moltmann’s Theology of Hope still resonates in theological discourses 60 years after the publication of his epoch-making book containing this concept. At a time of fading hope among South Africans, a revisitation of Moltmann’s pattern of reasoning holds the promise of reward. This article focuses on the quest for raising tangible hope in South Africa and the possible contribution of the Theology of Hope in this regard. The central theoretical argument here will be that the failure of hope in South Africa is caused by the fact that hope continues to be viewed in terms of the event of liberation (1994), and not in terms of a liberating process as the Theology of Hope proposes. To unpack this hypothesis and provide preliminary responses to the matters raised here and others, the study revisits Moltmann’s Theology of Hope as centred on the recurrent interpretations and applications that it has received in political theologies. The aim is to translate the core idea of the Theology of Hope into tangible hope for desponding South Africans today.Contribution: This research proposes that hope founded in the sign of the reign of the moving God, such as instances of love, goodness, truth-telling, fair jurisprudence and caring for the poor, which are discernible in South Africa today, are valuable and plausible building blocks for the creation of continuous tangible hope. The hope that rests in the actions of the moving God is of greater value than that residing in a single historic event. The 1994 liberation event, lauded by many as the great cause of perennial hope, has faded away in recent years and turned into a pervasive despondency within the South African community.

Hermenêutica e jurisprudência: o controle das decisões judiciais e a revolução copernicana no Direito processual brasileiro

This article aims at analyzing the Copernican Revolution that took place when the new Brazilian Code of Civil Procedure was implemented and eliminated the free conviction of the judge, delimitated the elements of a valid basis (art. 489, §1o) and, above all, required the courts to maintain stable, consistent and fair jurisprudence (arts. 926 and 927). For that purpose, this paper presents studies of the parameters that were incorporated in the Brazilian law according to concepts from the Judicial Decision Theory as advocated by the Critical Hermeneutics of Law . Ronald Dworkin’s Law Theory and the overcoming of Holmes’ Pragmatism are also taken into consideration, since they are basic for the late Brazilian Realism. As an allusion to the title of a renowned work of Eros Grau, this paper presents, lastly, decision control as an important achievement for Brazilian doctrine as a means of developing a more democratic law system. Keywords: hermeneutics, jurisprudence, integrity

The Judgment Defense in Medical Malpractice

In medical malpractice litigation, one well-recognized defense is that the physician or surgeon was simply using his or her best judgment, such that an adverse outcome was simply a matter of probability. In fact, the shielding of physicians and surgeons from legal liability under circumstances where it is clear that prudent professional judgment was exercised is a time-honored principle of American jurisprudence. To wit, in 1898, the court in the legal case of Pike v Honsinger set forth the principle that a physician or surgeon would not be “… liable for a mere error of judgment, provided he does what he thinks is best after careful examination” [1]. The Pike case dealt with a poor outcome from closed treatment of a patella fracture. This “error of judgment” doctrine became part of American legal thinking, and at first glance, its application appears straightforward. If the physician did the best that a similarly-situated professional could under the circumstances, there should be no legal liability for an adverse outcome, when that outcome arose despite reasoned decision-making among competing treatment alternatives. Like most legal doctrines, however, the so-called “error of judgment” defense is more complex than it may first appear. This complexity begins with defining what “judgment” means in the context of a professional liability lawsuit. As an egregious example, if an orthopaedic surgeon were to operate on the wrong limb, one could argue that the surgeon made a judgment not to confirm which extremity to operate on. The law certainly does not contemplate that such judgment errors should be protected. Given the definitional ambiguity surrounding the word “judgment,” the inevitable question that this article will attempt to address, is: Can courts develop a rational and fair jurisprudence around the meaning of “judgment” in professional liability cases?