Judicial Adjudication Research Articles

Proportionality Test and Constitutional Social Rights

The purpose of this article is to make a rational reconstruction of the use of the proportionality test in contexts of judicial adjudication of constitutional social rights. This reconstruction will be developed in two stages. Firstly, I will deal with the question of whether the proportionality test in its variation by omission (that is, in cases of positive rights) exhibits or not a different structure with respect to its (better known and developed) variation by excess (that is, in cases of negative rights). Secondly, I will describe the rules and forms of argumentation implied in the use of the proportionality test by omission, which constitute its respective sub-tests of suitability, necessity and proportionality stricto sensu. Lastly, I will present a brief summary.

사법판단에 대한 로널드 드워킨과 던컨 케네디의 쟁론

사법판단에 대한 로널드 드워킨과 던컨 케네디의 쟁론

"Legality" of the Legal Order in Postwar Serbia From 1944 to 1946: Organization and Work of the Judiciary

The judiciary in Serbia is heir to a long tradition of political influence, which was particularly visible during the communist regime after World War II. Violations of the presumption of innocence, retroactive sentencing and a denial of basic human rights are just some of the features of the work of the postwar “judiciary” in Serbia, between 1944 and 1946. This paper analyzes the implications of revolutionary legislative activity, the structure and organization of the Military Court and the Court of Honor, and examines to what extent the dominant political culture, implemented through the state coercive apparatus, influenced judicial adjudication. The paper elaborates on Radbruch’s idea of “statutory lawlessness”, Fuller’s notion of “procedural natural law” and “internal morality of law” and argues that the postwar law of communist Serbia did not exercise formal and procedural justice, and cannot be called a legal system in the full sense of the word.

“Jurisdictional Realization of Law” as Judicium: A Methodological Alternative, Beyond Deductive Application and Finalistic Decision

The proposed reflection intends to present the problem of judicial adjudication as a substantially-axiologically founded autonomous moment on the practical realization of law, and to explore this understanding in confrontation with external exigencies, mostly teleologically determined—hence, beyond strict deductive application, as a (normativistic-positivistic) syllogistic reference of facts to norms, and finalistically determined decision, as an option among possible alternatives to achieve specific aims. The main objective is to enter into a discussion on the methodological meaning of “integrity”, “hard cases” and “right answer”, as presented by Ronald Dworkin, and a critical reflection on the criticism(s) of that approach levelled by Neil MacCormick, so as to confront the relevance of principle and policy arguments, in order to bring about a different methodological approach, an alternative jurisprudentialist conception of adjudication, incorporating a practical-normative constitutive dialectics between legal controversy and legal system, such as that presented by Castanheira Neves. The focus will, then, be the legitimacy of the connection of arguments of principle and consequentialist arguments in adjudication, its selection and its justification, stating, therefore, a specifically assumed judicium, a judicative decision, having the legal system as its horizon of normative reference and of substantial and institutional autonomy.

International Human Rights as a Source of Unenumerated Rights: Lessons from the Natural Law

This paper discusses a recent and underreported trend in Irish unenumerated rights reasoning, whereby members of the High Court theorise about the existence of unenumerated rights within the Irish constitutional order due to their inclusion within international human rights texts. First, I discuss three significant constitutional rights claims that have been adjudicated upon with regard given to their reference within international human rights law – the right to secondary and higher education, to housing, and to a clean environment. This reasoning is then critiqued. I argue the assertion that the citation of rights within international human rights texts implies their latent existence within the Irish constitutional order gives a problematically expansive discretion to the Courts to engage in unenumerated rights reasoning. Noting how in the 20th Century, Irish judicial attachment to natural law reasoning led first to the development of a considerable corpus of unenumerated constitutional rights, and then ultimately to a reaction against judicial rights adjudication generally, I posit that attachment to the form of unenumerated rights reasoning under review in this paper may cause a similar retrenchment away from rights adjudication generally to occur in the future. Given this, this form of rights reasoning should be treated with suspicion, if not be rejected outright.

Universal Representation: Systemic Benefits and the Path Ahead

Executive Summary At a time when politics, financial considerations, and a push for expediency put pressure on the US immigration system, it can be difficult to have faith in the adjudicatory process. Case resolution quotas, directives that constrain courts’ ability to render justice in individual cases, and executive decisions that contract immigration judges’ discretion contribute to an immigration system that looks less and less like judicial adjudication of some of the highest-stakes cases in our legal system and more like a ministerial claims-processing scheme. A ray of hope exists, however, in the proliferation of public defender–style systems that offer universal representation to those facing deportation. This essay describes the genesis and expansion of the universal representation movement — a project based on the idea that indigent individuals should be entitled to counsel regardless of the apparent merits or political palatability of their case. It describes the benefits of such a program to the immigration adjudication system writ large. Beyond the oft-cited increase in success rates for individuals represented and the benefits to the communities in which such programs are located, universal representation promotes the integrity of the court system and strengthens an adjudicatory procedure that, for too long, has functioned primarily to expeditiously churn through cases. Finally, looking forward, it considers some of the challenges this movement faces as it grows and it identifies areas for further expansion.

The Choice of Norms in Courtroom Adjudication in Vietnam: In Search of Legitimacy in a Socialist Regulatory Context

AbstractNotwithstanding its defining feature of normative pluralism, the socialist state of Vietnam basically adopts a legal centralist approach to regulation. The judiciary is arguably the most illustrative of this approach, since it is the main forum where legal centralism encounters normative pluralism. Our research examines the choice of norms in judicial adjudication in Vietnam to check the effectiveness of its legal centralist approach. It finds that, despite lacking institutional support, judges managed to apply customary norms at their discretion against the state’s emphasis on top-down legal rules. A legitimacy-based analysis explains this phenomenon. It points out that judges conceptualized their legitimacy under the influence of both legal and extra-legal rules, thus making it apart from the legality. Judges attempt to bridge the gap between legitimacy and legality enabled de factor normative pluralism. In looking at the influence of customary norms over judicial adjudication, the article aims to make both theoretical and practical contributions. Theoretically, it enriches the scholarship of normative pluralism by showing how legitimacy-building keeps normative pluralism effective, irrespective of the dominating legal centralism. Practically, it proffers insightful implications for the ongoing court reforms in Vietnam based upon the findings.

Gatekeeping: Documents, Legal Knowledge, and Judicial Authority in Contemporary Argentina

AbstractThis article addresses the question of judicial authority by examining the mundane practices of legal knowledge‐making that unfold within the Argentine Supreme Court of Justice. Building on a larger ethnographic study of the court in the aftermath of the country's 2001–2002 crisis, this article focuses on the particular forms and documentary practices Supreme Court justices use to review a few select cases and then discard the majority without explanation. Analyzing these practices sheds light on the tensions that exist among different imaginaries of judicial adjudication and the court's role in the native legal field. In this context, this article argues that exclusion operates not only as a tool of docket management and control but also as a way to shape judicial authority and legitimacy in contemporary Argentina.

A Comparative Study of the Formal Rule of Law and the Substantive Rule of Law

The formal rule of law and the substantive rule of law are two basic classifications of the model of rule of law. The former pays more attention to compliance of rules, but it can easily lead to mechanical rigidity. The latter pays more attention to consideration of situational factors, but it is likely to cause arrogation of rules, and even has the danger of disintegrating the rule of law. From the perspective of legal interpretation and legal paradigm, their differences are investigated more clearly. Different modes of rule of law also have different influences on judicial adjudication, and although these influences have caused difficulties in judicial adjudication, they have also promoted the question of legality, thereby arousing scholars’ re-concern about the rule of law in the new context.

Should Alternative Dispute Resolution Mechanisms Be Mandatory? Rethinking Access to Court and Civil Adjudication in an Age of Austerity

In England, the civil justice system is undergoing a fundamental transformation: due to austerity policies, dispute resolution is being increasingly privatised and civil trials are “vanishing”. How can the role and functions of judicial adjudication be protected in this scenario? This brief article aims at addressing this issue. I will first proceed by identifying the purposes of the public adjudication. Then, after having considered what I call the ‘public’ element in private dispute resolution, I will advance and justify a proposal for a renewed role for courts. By considering recent developments in the English case law, I will (quite provocatively) argue that ADR should be mandatory and should be the normal modality to solve private disputes, while judges should decide cases only under certain circumstances. Overall, in this article I aim to offer some talking points for further discussion on the impact of ADR in England and to stimulate afresh theoretical debate over the rarely evaluated implications of the privatisation of civil justice.

The Fragmentation of Taxpayers’ Rights in International Dispute Resolution Settings: Healing Anxieties through Judicial Dialogue

The current political transformations towards more transparency and efficiency in the struggle against tax avoidance schemes pervade our national governments, which blindly enforce the international standards at any cost. In this turmoil, the protection of taxpayers’ basic rights has been completely neglected. In response, several scholars and institutions have powerfully argued the need to elaborate a multilateral taxpayer bill of rights in taxation. In the author’s opinion, these attempts must be supported with an analysis of the judicial adjudication of taxpayers’ rights. In the realm of adjudication by international courts and tribunals, the author sheds light on how the phenomenon of fragmentation (separate normative frameworks and a proliferation of separated adjudicated bodies) triggers endemic taxpayer anxieties. This article goes further to explore potential solutions for these anxieties that will inevitably lead to strengthening the judicial dialogue.

The Other Thirty Percent: An Economic Assessment of Duplication in PTAB Proceedings and Patent Infringement Litigation

Congress “repeatedly stated [that] its paramount goal” in having inter partes review (IPR) before the Patent Trial and Appeal Board (PTAB or the Board) was to “serve as a cheaper, faster alternative to be used instead of – rather than in addition to – litigation in district court.” More than five years after IPR trials were established, however, it is unclear whether Congress will achieve its goal. Some argue that “rather than an absolute alternative to civil litigation, the AIA’s new proceedings increase the likelihood of duplicative concurrent inter partes administrative and judicial adjudication of a patent’s validity.” Duplicative patent challenges within and across IPRs and district court litigation is the focus of this article.

Limitation of Socio-Economic Rights in the 2010 Kenyan Constitution: A Proposal for the Adoption of a Proportionality Approach in the Judicial Adjudication of Socio-Economic Rights Disputes

On 27 August 2010 Kenya adopted a transformative Constitution with the objective of fighting poverty and inequality as well as improving the standards of living of all people in Kenya. One of the mechanisms in the 2010 Constitution aimed at achieving this egalitarian transformation is the entrenchment of justiciable socio-economic rights (SERs), an integral part of the Bill of Rights. The entrenched SERs require the State to put in place a legislative, policy and programmatic framework to enhance the realisation of its constitutional obligations to respect, protect and fulfill these rights for all Kenyans. These SER obligations, just like any other fundamental human rights obligations, are, however, not absolute and are subject to legitimate limitation by the State. Two approaches have been used in international and comparative national law jurisprudence to limit SERs: the proportionality approach, using a general limitation clause that has found application in international and regional jurisprudence on the one hand; and the reasonableness approach, using internal limitations contained in the standard of progressive realisation, an approach that has found application in the SER jurisprudence of the South African Courts, on the other hand. This article proposes that if the entrenched SERs are to achieve their transformative objectives, Kenyan courts must adopt a proportionality approach in the judicial adjudication of SER disputes. This proposal is based on the reasoning that for the entrenched SERs to have a substantive positive impact on the lives of the Kenyan people, any measure by the government aimed at their limitation must be subjected to strict scrutiny by the courts, a form of scrutiny that can be achieved only by using the proportionality standard entrenched in the article 24 general limitation clause.

Editorial

The last issue of 2013 consists of fourteen contributions dealing with a potpourri of topics. The first two articles are both by the same author. In the first one, André Louw addresses the recent, sometimes deplorable conduct of intellectual property (or IP) lawyers, and in the second one, André Louw explores the proper role and meaning of good faith (or bona fides) in contract law, and the approach of our courts to the application of this principle in individual cases involving claims of unfairness and the like. The third article, by Rufaro Mavunga, critically assesses the Minimum Age Convention 138 of 1973 and the Worst Forms of Child Labour Convention 182 of 1999. Nicholas Orago, in the fourth article, discusses socio-economic rights in Kenya and proposes that if the entrenched socio-economic rights are to achieve their transformative objectives, Kenyan courts must adopt a proportionality approach in the judicial adjudication of socio-economic rights disputes. The fifth article, by Oliver Fuo, explores and critically investigates the relevance and potential of integrated development planning in contributing towards the achievement of social justice in South Africa. Next, Michaela Young discusses the fate of informal fishers in the context of the Policy for the Small-Scale Fisheries Sector in South Africa. The second-last article, by Hermanus van der Merwe, provides a historical and teleological overview of the crime of direct and public incitement to commit genocide under international law, as well as the definitional elements thereof as interpreted and applied by the International Criminal Tribunal for Rwanda, before he continues to examine it in contemporary South African law. The last article, by Chuma Himonga, Max Taylor and Anne Pope, explores the scope and content of the ever elusive concept of ubuntu, as pronounced on by the judiciary in various cases, and demonstrates that its fundamental elements of respect, communalism, conciliation and inclusiveness enhance the constitutional interpretation landscape.
 

China's Legal Response to Trafficking in Wild Animals: The Relationship between International Treaties and Chinese Law

In China, the wild animals and animal products that are sold through illegal trafficking are mainly those that can be made into medicines; are raw materials in the form of ivory, rhinoceros horns, and turtle shells; and are edible or have ornamental value, such as birds, monkeys, turtles, and lizards. Due to its rapid economic development over the past decade, China has become one of the world's largest wildlife markets. The main reasons for trafficking are a lack of viable substitutes for raw materials used in traditional Chinese medicines (e.g., bear bile, bear bile powder, pangolin, and other products); a preference in traditional food culture for delicacies made from wildlife; and of the private consumption by some rich and corrupt government officials of tiger's meat, bear's paw, pangolin and other wild animal products—bear's paw and pangolin being the most popular. This type of wild animal trafficking endangers the safety of animal species protected by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), and damages the international image of the government and people of China. Since 2013, under the frame of construction of ecological civilization, China has taken stricter measures on legislation, administrative enforcement, judicial adjudication, and international cooperation on prevention and punishment of illegal trafficking.

Odpowiedzialność osób nieletnich za czyny karalne – uregulowanie dwutorowe

This paper aims to analyze the responsibility of minors for their crimes in context of the 1982 act on proceedings with minors, as well as with article 10§2 of the Penal Code. It argues that the fundament in judicial adjudication on minors is the 1982 act. Court does not „sentence” them on serving in correctional institution, but he „decides” on their placement there. Correctional measure, is obviously a unique mean of restricting freedom, but it is not perceived as a penalty. Penal Code on the other hand, can be used only in strictly specified circumstances, listed in article 10§2 of the Penal Code. Based on the Penal Code, the responsibilty of minor is unique.

Introducing Procedural Proportionality Review in European Law

AbstractProportionality review has emerged as a multi-purpose, best-practice standard for conflict resolution, and has for this reason been embraced by most constitutional systems worldwide. It is, however, difficult to escape the fact that proportionality review opens up room for judicial discretion. In European Union law, as well as European Convention on Human Rights law, this discretion has provided an activist judiciary with a most powerful tool for facilitating European integration through judicial adjudication. In a number of recent cases, this approach has been criticized. The critique raised reaches beyond the application of the proportionality principle in concrete cases. It also encompasses a critique of the proportionality principle as such, at least the conventional interpretation of the proportionality principle. This, in turn, raises questions concerning the concept of European law, its constitutional quest and even its very legitimacy. In this article the author discusses the legal and political implications of these challenges and proposes a revival of political power at the expense of judicial power. To this effect, the author introduces procedural proportionality review. Procedural proportionality review secures judicial deference, although not judicial abdication, in politically controversial and democratically legitimate cases.

Dispute Resolution and Electoral Justice in Africa: The Way Forward

This paper examines electoral adjudication in Africa's democratisation process. The idea of aggrieved persons instituting election petition in court as opposed to resorting to mayhem is a positive sign in Africa's democratisation process. The aggrieved choose the law as their arbiter and put their hope in the law. This practice will facilitate the institutionalisation of succession and entrench the rule of law and constitutionalism. However, there have been misgivings about the outcome of judicial adjudication of these electoral disputes. Electoral disputes are not resolved expeditiously and courts decisions on such matters are sometimes overtaken by events. There is also the perception of judicial bias, corruption, and overwhelming political influence of the judiciary leading to lack of confidence in the process. In the same way the large numbers of election petitions put a lot of strain on the judiciary, clogging the courts. Alternate Electoral Dispute Resolution (AEDR), both formal and informal, offers avenues to resolving election dispute but this mainly pertains to pre-election disputes with post-election disputes being dealt with by the courts. In view of the proliferation of election petitions it is imperative that AEDR should be considered as a viable complement to adjudication. Also, voter education should be intensified on realistic expectations of elections by citizens so that election ends with the ballot and only genuine cases go through adjudication.

Legal Interpretation and Adjudicatory Activism in International Commercial Arbitration

The paper discusses the issue of creative aspects of legal decision-making in the specific setting of international commercial arbitration. It focuses on cases, in which legal interpretation leads to an expression, formulation and consolidation of formerly unspecified or ambiguous rules. In this vein, the paper explores relevant theoretical approaches, formulated predominantly in the context of domestic litigation in the civil law and common law traditions. Applicability of these conceptualizations to arbitration is further examined, and differences between the conditions of judicial and arbitral adjudication are analyzed. A study of three interpretative considerations, characteristic to arbitration: lex mercatoria, amiable composition and public order, as well as relevant case law analysis, is further offered. The paper seeks to expose the role of these arguments in creative legal interpretation in arbitration, where mitigation or avoidance of overly locally oriented effects of application of national laws, as well as expansion of adjudicatory autonomy are frequently aimed at.

Can community-based land adjudication and registration improve household land tenure security? Evidence from Afghanistan

Unlike in many developing contexts, land title regularization and registration projects in Afghanistan have for the most part eschewed judicial adjudication and recording of title for those landholders with customary tenures or otherwise without legally recognized rights to land. Rather, the pilot land titling and registration projects in the country have been community-based, the defining feature of which is recording of community consensus regarding who in the community holds what rights to what land, buildings, water, trees, and commons, with some recognition by a governmental entity such as a municipal or government agency, but not as a result of judicial adjudication and registration processes. We call these initiatives Community-Based Land Adjudication and Registration, or CBLAR. We show that CBLAR is more appropriate than legal titling in the Afghan context but that the success of these initiatives in improving household land tenure security depends on the quality of customary governance and on investment in public goods such as roads, schools, lending institutions, administrative capacity of local governments, and forums to resolve disputes that overwhelm communities. More generally, CBLAR promises to improve household land tenure security in post-conflict settings when it is implemented in the appropriate context and with the appropriate support from the state and international donors.