Judicial Creativity Research Articles

The hidden histories of the Pinochet case

AbstractThe world's imagination was caught by the 1998 arrest in London of General Augusto Pinochet on charges of egregious human rights crimes and the 16‐month battle to extradite him to Madrid. For the first time, a former head of state had, while travelling abroad, been arrested on such charges, with his claim to immunity being rejected by a national court. The case's notoriety increased when Lord Hoffman, a judge when it first came before the Law Lords, did not publicly disclose his links with Amnesty International, an intervenor in the proceedings. Pinochet's release on health grounds compounded the controversy. This article reveals hidden histories behind the Pinochet case, advancing our understanding of its progression and wider significance. It illuminates the relationship between law and politics, the role of personal views and judicial creativity in the UK's top court, the ways in which law operates in practice, and its promises and limitations.

“But his sense of justice turned him into a brigand and a murderer.” On Gunther Teubner’s “Self-subversive Justice: Contingency or Transcendence Formula of Law?”

Abstract Teubner’s article on self-subversive justice is an inspiring example of the way in which he tries to move forward Luhmann’s sociological endeavour of understanding law in terms of how it understands itself. Moving Luhmann’s autopoietic systems theory forward is something that Teubner significantly does in many of his writings. Here he contrasts various social and legal philosophical accounts with a potential sociological account of justice that utilises the contrasting versions of both Luhmann’s autopoietic systems theory and Derrida’s deconstruction theory. To appreciate how justice operates self-subversively is to appreciate how law cannot avoid striving to overcome itself, and how justice both in its many universal and alterity forms enables this. Teubner gets close to marrying not only Luhmann and Derrida, but also sociological theory and literary or poetic theory; also marrying judicial creativity with that of other creative arts. Law constantly looks to justice within its own practices, but at the same time beyond those practices and thereby challengingly confronting itself and its search for justice in doing so.

The Remaking of South African Administrative Law

AbstractThis article explores the remaking of administrative law review in South Africa since the introduction of constitutional democracy in 1994. It characterizes the construction of the constitutional and legislative framework, as well as the courts’ interpretation of that framework, as the first phase of the remaking. The second phase encompasses the courts’ recognition of a constitutional principle of legality based on the rule of law, and their swift development of the content of this principle. This judicial creativity has resulted in an elaborate avenue to review, parallel to the Promotion of Administrative Justice Act 3 of 2000, and has caused problems of rivalry and avoidance. The article identifies and discusses some of the more significant implications of each of these phases of reconstruction. It also proposes corrective measures likely to advance the coherence and effectiveness of judicial review and discourage the adoption of a doctrine of non-justiciability.

The Difference Method Makes: Judicial Restraint and Judicial Creativity in Rana Nahid v Sahidul Chisti

Restraint and creativity are both necessary judicial attitudes. But when should judges exercise restraint in adjudication and when, creativity? This is the question posed by the Supreme Court’s 2020 split verdict in the case of Rana Nahid v Sahidul Chisti, which required the Court to decide whether Family Courts had jurisdiction over maintenance claims under the Muslim Women (Protection of Rights on Divorce) Act, 1986. By contrasting the two approaches taken by the judges to statutory interpretation in this case, the note argues that while judges should refrain from arbitrary rule making, creativity must be viewed as duty when it can fill a gap in the law or prevent an unreasonable outcome and is in furtherance of pre-existing legal principles.

PROCEDURE, STRUCTURAL PROCESS AND LEGAL ACTIVISM

Subject Contextualization: It examines the procedural formalism from a logical-formal structure. Furthermore, it analyzes the possibility of judicial creativity regarding procedure in structural processes. It also permeates the process as a guarantee against discretion and its maintenance as a delimited discursive field.
 Objectives: The main purpose of this article is to analyze process flexibility in cases of structural disputes, based on the proposal of the process as a guarantee institution, from which proceduralism derives.
 Methodology: For that, it uses a bibliographic-documentary analysis, using the deductive method, to infer the conclusions.
 Results: It is concluded that the legal and discretionary review of process and procedure intitutions is not valid, even in conflicts otherwise classified as structural.

The International Criminal Court as a Law Laboratory

Abstract This article investigates the International Criminal Court (ICC) as a law laboratory. Inspired by perspectives from the sociology of law, the article analyses how professional agents battled for control over the general direction and specific legal terminology of the Court, especially in its early life. Working also to distance the Court from what was perceived as excessive judicial creativity of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda, these agents created the conditions for a distinct laboratory of law in which new legal concepts and doctrines could be created. The article analyses in particular one new doctrine, the control theory based on Article 25(3) of the ICC Statute, as emblematic of battles to define the direction of the ICC as a law laboratory.

The Control Theory as Multidimensional Concept

Abstract The judgment in Ntaganda constitutes a landmark decision in which the Appeals Chamber of the International Criminal Court (ICC) for the first time accepted an accused’s criminal liability based on indirect co-perpetration. And yet, the concept of indirect co-perpetration continues to remain heavily contested. In this article, I use the Ntaganda Trial and Appeals Chamber judgments as a starting point for disentangling the control theory. I argue that the concept of control is a multidimensional theory. It is based on both empirical and normative considerations and constitutes a mixture of individual and collective liability. The meaning of control is not uniform: it varies along several dimensions that are applied depending on the facts of the case. The ICC’s flexible application of the notion of control does not fit well with the uniform framework it has drawn up in establishing the liability of indirect co-perpetrators. There is a gap between the law in the books and the law in action, which triggers questions about the possibilities and limitations of judicial creativity at the ICC. To enable better public accountability, transparency and legal certainty, I propose a model of factor-based reasoning at the ICC that can streamline and better justify what currently is a very fluid liability theory generating problematic case law.

Right to Commercial Speech in India: Construing Constitutional Provisions Harmoniously in Favor of Public Health.

This article examines the right to commercial speech that has been read into the right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India. Restrictions on this right are only permitted if they come within the ambit of the exhaustive list of reasonable restrictions under Article 19(2), under which public health is notably absent. Nevertheless, through the doctrine of harmonious construction, the Indian judiciary have adopted a purposive interpretation to circumvent the omission of public health by carving up freedom of commercial speech into two parts: protected speech which furthers public interest and unprotected speech which is purely commercial. Moreover, the Indian courts have construed these provisions in light of the right to life under Article 21 and the health-related Directive Principles of State Policy under Part IV of the Constitution. This article concludes that judicial creativity in India has consistently been used in favor of protecting public health.

THE GIG ECONOMY – QUID IURIS?

Definition of the term “gig economy”. Its rapid growth. Advantages and disadvantages of the gig economy. The three legal stauses and their importance. The self-employed, employee and worker a distinction and their significance. Case law evaluation and analysis providing equitable developments to worker status. Judicial creativity. Epitome.

Singapore as International Debt Restructuring Center: Aspiration and Challenges

According to some economists, the deglobalization of the world has commenced. While that is true of trade and of ideas, it may not reflect the experience of existing companies undergoing restructuring which have in a sense been locked into a previous matrix where its assets and stakeholders were widely dispersed throughout the globe. This has created anomalies in the handling of worldwide insolvency cases which comes up against both protectionism, including judicial competition for such cases leading to less universalism in some situations, as well as the realignment of interests between the various corporate constituencies due to Covid-19, which may have further strengthened the hands of shareholders at the expense of other stakeholders as companies are kept afloat. In Singapore the government decided to develop Singapore into an international center for debt restructuring as part of its strategy to export its services and for this purpose embarked on an ambitious project to reform both its domestic and crossborder insolvency laws. The hybrid scheme was created by injecting some US bankruptcy law elements into the ‘English’ scheme of arrangement. The UNCITRAL Model Law on Cross-border Insolvency, in the form of the Third Sch of the Insolvency, Restructuring and Dissolution Act 2018 (IRDA 2018), was also adopted. Providing a forum for distressed companies in the region to restructure their debts without having to travel to London or New York is a positive development for Singapore and the region. The hybrid scheme is a path-breaking innovation so challenges to its design and operation are unavoidable. But its structure is flexible enough to allow for judicial creativity to fill gaps and to prevent its abuse. The courts face less challenges in interpreting the Third Sch, and has achieved some success in fostering cooperation and communication in cross-border insolvency matters between courts, but the domination of family companies, fragmentation of credit and weak legal institutions in the region may be more difficult challenges to Singapore’s aspiration to serve as the regional restructuring hub.

Judicial Exposition of Gender Justice as a Constitutional Mandate: A Narrative from India

The catalytic role played by the Indian judiciary in providing visibility to the 'covert social prejudices' against females has succeeded in alleviating the condition of women in our patriarchal society. This paper strives to highlight the proactive role played by the judiciary in recent years, addressing women concerns in a different light, which were hitherto unconditionally accepted with complacence. Purposive approach adopted by the judiciary in interpreting existing laws, manifests adherence to the constitutional mandate of gender equality. Further, an attempt has been made to identify the areas where judicial action has fallen short in bringing about real justice to women. The research is primarily based on the normative method presenting qualitative analysis of the constitutional and legislative provisions and their judicial exposition. The paper concludes that judicial creativity needs the backing of social acceptability to bring about real social transformation towards the constitutional mandate of gender justice.

A Common Law of Choice of Law

For more than a generation, choice of law has been the victim of a historical contingency. The “Conflicts Revolution” of the mid-twentieth century and its legal realist leaders bundled together three concepts that, although all typifying the traditional approach, are not inherently connected: the “scientific formalism” of Bealean territorialism; attention to “system values” like uniformity and predictability; and judicial activism. The revolutionaries tied an anchor to formalism, sinking the regard for system values and judge-led decision-making in the process. This Essay argues that the rejection of system values and judicial lawmaking in the choice-of-law context was a mistake — and it offers a means of reintegrating them into post-revolution choice-of-law thought. Waving the flag of “legislative supremacy,” modern choice-of-law theory has asserted that standard techniques of “statutory interpretation” ought to be determinative of how courts resolve choice-of-law problems. However, the modernists have failed to grapple with what “interpretation” means in a context that is almost never contemplated by legislatures. In recent years, those studying statutory interpretation have become increasingly sophisticated in their understanding of the ways in which courts use expansive sets of resources to counter difficult cases, leading to recognition of the “common law” of interpretation. But, so far, choice-of-law theorists have been left behind — continuing to adhere to a primitive conception of statutory interpretation that shuns the role of the judge and the importance of broader goals, including the facilitation of system values. The Restatement (Third) of Conflict of Laws, currently being circulated in draft form, continues that error, wholeheartedly endorsing an outdated and unworkable mode of interest analysis. This Essay offers a means of modernizing the modernists and rescuing the Restatement (Third) in the process. The key insight is to recognize that judicial creativity and attention to the facilitation of a workable system of choice of law is fully consistent with realism. Moreover, the principle of legislative supremacy is better protected by a methodology that does not mask metaphysical invention behind empty phrases like “interests,” but instead recognizes explicitly the important yet limited role of the judiciary. In line with these recommendations, this Essay advocates for the embrace of a “common law of choice of law” methodology, an approach that recognizes judicial, common-law rule-making and that does not rely on sharp, fictive lines drawn between “interpreting” the law and developing system-oriented rules.

From London to Bombay: Judicial Comparisons between Parsis and Jews, 1702–1865

Abstract As England extended its authority over Bombay, Calcutta and other localities in early imperial India, law served as a medium of transfer between metropole and colony and English judges faced complex questions about the law’s relationship with its non-Christian subjects. While Hindus and Muslims were provided with authorised religious advisors at the English courts in India, Parsis remained officially excluded as a minority religious group. Judicial creativity, when faced with questions of Parsi marriage, divorce, child custody and conversion, was limited by judges’ ‘available conceptual resources’. Cases involving Jews in England from the eighteenth century proved to be uniquely relevant, as they rehearsed the fundamental challenges involved in the interaction of the Anglican establishment with non-Christian subjects. The common legal paradigm of Jews and Parsis was further manifested in the unconscious framing of outsiders in the courtroom using the metaphor of a ‘body of people’. This phrase, which appears only twenty times in the corpus of English Law Reports, reflects the physicalisation or personification of a society of individuals with a shared history, values, and political and legal framework. It expresses a judicial conception of them as distinct and unified, with the corollary negative associations of being threatening and potentially subversive. Despite their strong mercantile ties to the colonisers, Parsis thus served as the ‘Jews’ of India in the sense that they helped define and secure the majority by contradistinction, and their separateness was reinforced both explicitly and implicitly in legal encounters.

O političkoj pozadini rane srpske recepcije francuske sociološke škole i metoda u pravu

The aim of the paper is to shed light upon the political background of an early Serbian critic of French sociological school and method in law. Its working hypothesis is that this critic reveals a conservative character of Serbian Staatrechts theory advocated by Slobodan Jovanovic, Živojin Peric and their followers. Based on the idea of social consciousness as a source of law, on judicial creativity and the free scientifically based legal research, the French sociological school stood clearly against statist and elitist mainstream of Serbian legal theory which idealized the State as the unique sovereign power in its capacity to create the law. This paper endeavors to contribute not only to a better understanding of the reception of sociological method in Serbia, but also to a critical analysis of the ideological foundation of the 20th century Serbian legal thought.

The Provisional Measures Orders in International Environmental Disputes: A Case for International Courts and Tribunals

This article examines the ways in which international courts and tribunals should utilise their powers to prescribe provisional measures in the context of environmental disputes. The article makes the case that the system of dispute resolution has the capacity to adapt to the specific needs of environmental disputes. By analysing the key features of provisional measures and extracting new judicial trends, new light is shed on two core issues: first, this article develops a theoretical framework within which provisional measures should be understood in order to achieve their aim. Second, it shows how a certain level of judicial creativity in the design of provisional measures can have implications on whether such measures can be enforced through innovative cooperation with other institutional bodies. As a result, this article argues that provisional measures can fill the gap of enforcement in international environmental law and become a pivotal instrument in environmental protection.

The Genius of Common Law Intellectual Property

Among Richard Epstein’s influential contributions to legal scholarship over the years is his writing on common law intellectual property. In it, we see Epstein’s attempt to meld the innate logic of the common law’s conceptual structure with the realities of the modern information economy. Common law intellectual property refers to different judge made causes of action that create forms of exclusive rights and privileges in intangibles, interferences with which are then rendered enforceable through private liability. In this Essay, I examine Epstein’s writing on two such doctrines: “hot news misappropriation” and “cyber-trespass”, which embraces several important ideas that modern discussions of intellectual property would do well to pay greater attention to: (1) the private law nature of intellectual property claims, (2) the interconnectedness of intellectual property and other basic areas of law, (3) the compatibility of instrumental and non-instrumental considerations, and (4) the valorization of judicial creativity in rule development.

Magistrates Training: Why to Crave for More Creative Cities and Judges?

This study seeks to identify the contemporary challenges of the judiciary and the need for training of judges focused on skills aimed at resolving these adversities. To demonstrate this approach, it points out the importance of judicial creativity in face of the disorderly urban development with the exclusion of the poorest people. The study concludes that the Magistrate's Judicial Schools for Training and Improvement have the role of establishing training activities that combine legal techniques with knowledge of management, socioeconomics and creativity. The paper also encourages socio-judiciary research programs and exchanges with universities, so that judges are encouraged to enroll in Master and Doctoral courses, and possibly attend a second graduation.

Foreword: Embracing Administrative Common Law

This article begins with the descriptive claim that much of administrative law is really administrative common law: doctrines and requirements that are largely judicially created, as opposed to those specified by Congress, the President, or individual agencies. To be sure, governing statutes exert some constraining force on judicial creativity, but the primary basis of these judge-fashioned doctrines lies in judicial conceptions of appropriate institutional roles, along with pragmatic and normative concerns, that are frequently constitutionally infused and developed incrementally through precedent. Yet the judicially created character of administrative law is rarely acknowledged by courts - and to the extent courts do acknowledge judicial development of administrative law, they usually condemn the practice.Turning from descriptive to more normative, the article argues for explicit judicial recognition and acceptance of administrative common law. Administrative common law serves an important function in our separation of powers system, a system that makes it difficult for Congress or the President to oust the courts as developers of administrative law. In particular, the institutional features of administrative law - the role it plays in structuring relationships between different government institutions and the requirements it imposes on how agencies operate - create strong pressures on courts to play a lawmaking role. Moreover, courts have employed administrative common law as a central mechanism through which to ameliorate the constitutional tensions raised by the modern administrative state. These features combine to make administrative common law inevitable. At the same time, administrative common law represents a legitimate instance of judicial lawmaking. The very same factors that support federal common law in other instances - unique federal interests at stake, a need for uniformity, and the impropriety of relying on state law - dominate federal administrative contexts. Much administrative common law also has a statutory basis to which it is at least loosely tethered, and embodies core constitutional values. As important, openly acknowledging the role that judicial lawmaking plays is critical to clarifying and improving administrative law.

Women as Shari’ah Court Judges With Reference to Judicial Creativity: A Comparative Study of Malaysia and Indonesia

Woman and shari’ah court have been discussed in many literature works for a long time. There are juristic views on the eligibility of a woman to hold the post of a judgeship in Islamic judiciary in which the majority of the Muslim jurists who opined that they are not qualified enough to hold the post and others said that they are qualified but subject to certain and limited jurisdictions. As a result of the juristic views, there are also fatwas about the permissibility and non-permissibility of a woman to hold a post of shari’ah court judge including Malaysia. Despite the non-unanimous decision on this issue, there are some states in Malaysia, such as Selangor and Federal Territories which have appointed a woman to be a judge. Comparing this issue with Indonesia including Aceh, one could see that Indonesia is in the forefront in acknowledging woman in the Islamic judiciary. The paper is an attempt to see how this issue is dealt with between these two countries by looking into the related laws governing the qualifications of a judge and the challenges that a woman judge faces in the two countries.

‘Positive Obligations’ Doctrine of the European Court of Human Rights: Is it Cogent or Obscure?

Over the last half century, positive obligations jurisprudence of the European Court of Human Rights (ECtHR) has been playing a pivotal role in sculpting European Human Rights system. There is, however, some potential for disagreement on whether it is an effective and well-established doctrine or not. On the one hand, the activeness of the ECtHR brings about some practical benefits in order to keep out with new societal context, but on the other, unique tensions (e.g., underestimation of state’s margin of discretion, increasing burden on state, inconsistencies and uncertainties of verdicts) in the implementation of that doctrine give rise to anxieties about its cogency. Since this issue is quite multifaceted, this paper aims to elucidate in what ways positive obligations doctrine is justified and to what extent it has been deliberate while deriving positive obligations regarding Article 2. At the end, it asserts that without positive obligations doctrine, the Convention might be outmoded and ineffective. However, despite some immature aspects of it, the Court at least strived to dynamically interpret the Convention thanks to this doctrine. For this reason, it is claimed that considering existing and possible benefits of that doctrine, common legitimization for the judicial creativity of the ECtHR might be assured in foreseeable future.