Judicial Narratives Research Articles

Judicial Narratives of Ideal and Deviant Victims in Judges’ Capital Sentencing Decisions

Although the Victim’s Rights Movement has led to advances for victims of crime, the use of victim impact evidence in criminal trials remains controversial due to the suspicion that such evidence enhances punitive attitudes and arbitrariness in capital sentencing outcomes. Despite a growing body of literature in this area, it remains unclear if some victims are viewed more favorably than others, particularly from the perspective of judges. The current study examines the construction of victims by judges in capital cases and how this portrayal impacts sentencing outcomes in Delaware, which vests the final capital sentencing authority in judges rather than juries. In examining this gap in the literature, we consider if judges make distinctions between ideal and deviant victims, if these distinctions are associated with victim and offender characteristics, and if the construction of victims impacts offender sentencing. Findings from this study lend support to the idea that judges describe some victims as more “worthy” than others, that victims described in ideal ways are more likely to be white and female, and that “ideal victims” are more likely to result in death sentences.

A critical disability theory analysis of wrongful life/birth actions in Israel

Wrongful life/birth actions raise difficult questions. The Israeli Supreme Court of Justice’s recent ruling in the case of Hamer (2012) reflects these difficulties. The court decided that wrongful life actions should not be admitted. By contrast, wrongful birth actions were approved. This paper offers a critical disability theory analysis of the decision in Hamer. The author claims that the court’s refusal to acknowledge wrongful life actions constitutes an important positive legal narrative. Nevertheless, the judicial narrative provided in other parts of the decision makes only a marginal contribution to the positive social structuring of disability. Therefore, the author suggests a new approach that is based on the parents’ right to autonomy. The author claim that this position does not involve negative connotation towards people with disabilities and enable the court to compensate the parents for the damages they suffered.

A Judicial Rashomon: On Ageism and Narrative Justice

How are old people treated in courts? How do judges construct old age? To what extent judicial decisions regarding older persons reflect ageist attitudes? Historically, these questions have received relatively little attention in gerontological literature. This Israeli case-study tries to add a new dimension to the growing literature in the field of jurisprudential gerontology, in a context that so far received little attention: narrative justice. More specifically, this study combines a narrative-justice theoretical approach, with a legal case-study methodology, in order to explore the relationships between judicial narratives and ageism. The narrative analysis presented in this case study exposes how in contrast to common perception, which views legal decisions as objective and unimaginative texts, reality is different. The judicial case studied in this article exemplify how in real life, judges often construct a socio-judicial narrative, embellished by personal bias and prejudices regarding old age.

Social Information in Court Decisions of Compulsory Child Adoption in Israel

Ambiguity over the concepts of “parental capability” and “the child’s best interests” in the Israeli adoption law, and a lack of sufficient professional knowledge can lead to bias in the professional decision-making process regarding child adoption. This study investigates the idea that judges do not use only legal considerations and relevant information relating to the child-parent relationship but also social information about the biological parent whose parental capability is under legal consideration. The study makes use of the priming paradigm as a conceptual framework for understanding the possible effect of social information on legal judgments in child adoption cases. The textual narrative analysis of 130 court decisions in favor of compulsory adoption reveals the use in courts of three kinds of social information about biological parents: familial information, sexual information, and social-functional information. The study discusses the role of such information in establishing the judicial narrative of parental incapability. In order to “de-bias” the judicial decision-making process regarding child placement, a number of strategies for consideration as social policy are proposed.

‘The Wandering Jew has no Nation’: Jewishness and Race Relations Law

This essay considers judicial discourse on Jews and Jewishness in UK race relations law. Beginning with an account of how ‘the Jew’ appeared in legislative debates, the essay goes on to explore the confusions, paradoxes, and underlying normativities revealed in both legislative and judicial narratives of Jews and Jewishness. The essay concludes with a discussion of the first two decisions in the Jews' Free School case.

Soft Law and the Rule of Law in the European Union: Revision or Redundancy?

While scholarly writing has dealt with the role of law in the process of European integration, so far it has shed little light on the lawyers and communities of lawyers involved in that process. Law has been one of the most thoroughly investigated aspects of the European integration process, and EU law has become a well-established academic discipline, with the emergence more recently of an impressive body of legal and political science literature on 'European law in context'. Yet this field has been dominated by an essentially judicial narrative, focused on the role of the European courts, underestimating in the process the multifaceted roles lawyers and law play in the EU polity, notably the roles they play beyond the litigation arena. This volume seeks to promote a deeper understanding of European law as a social and political phenomenon, presenting a more complete view of the European legal field by looking beyond the courts, and at the same time broadening the scholarly horizon by exploring the ways in which European law is actually made. To do this it describes the roles of the great variety of actors who stand behind legal norms and decisions, bringing together perspectives from various disciplines (law, political science, political sociology and history), to offer a global multi-disciplinary reassessment of the role of 'law' and 'lawyers' in the European integration process. (About the Book)

Lorna Hutson. The Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama. Oxford: Oxford University Press, 2008. x + 382 pp. index. illus. bibl. n.p. ISBN: 978–0–19–921243–9.

Lorna Hutson. The Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama. Oxford: Oxford University Press, 2008. x + 382 pp. index. illus. bibl. n.p. ISBN: 978–0–19–921243–9. - Volume 61 Issue 4

(This Is Not A) Story: Using Court Records to Explore Judicial Narratives in R v Kathleen Folbigg

(2007). (This Is Not A) Story: Using Court Records to Explore Judicial Narratives in R v Kathleen Folbigg. Australian Feminist Law Journal: Vol. 27, No. 1, pp. 71-95.

Constructing rape: judicial narratives on trial

This paper aims to clarify conflicting accounts of the fundamental elements of rape law and its interpretation in Japan. The central question is how judges in Japan understand rape and sexual violation more generally. The paper is part of a larger project that explores the process of judicial decision making in Japan and, in particular, the social context shaping those decisions. I use a qualitative analysis of 41 cases involving sexual assaults to examine the ways in which judges construct gender, sexuality and sex. My analysis draws on the legal storytelling approach to highlight a pattern in judicial decision making that results in the exclusion or disqualification of narratives of rape, and thus women's and men's experiences, that do not conform to pervasive rape stereotypes.

Toward a New Feminist Theory of Rape

Toward a New Feminist Theory of Rape

Kadijustiz or Qadī-Justice? a Paternity Dispute From Fourteenth-Century Morocco

AbstractSometime after the year 1312-13 a paternity dispute was brought before a qādī serving in an undetermined location in the northern part of the Western Maghrib. The claimant asserted that he was the son of a local notable, whereas the latter's legally recognized children asserted that he was the child of a slave-girl who belonged to the notable's daughter. Before issuing his judicial decision, the qādī wrote a detailed letter to a distinguished Fāsī mufti in which he presented a summary transcription of the testimonial evidence and asked the mufti to issue a fatwā corroborating his handling of the case. In the following essay, I seek to shed light on the operation of qādī-justice under the Mārinids in the fourteenth-century by studying the qādī¸s familiarity with legal doctrine, his ability to manipulate legal discourse, and the "art" of his judicial narrative.