Principles Of Adjudication Research Articles

Kant’s principles of adjudication and execution in the context of the Enlightenment

In the 1770s’ lectures on ethics, Kant distinguishes between two principles of obligation: the principle of adjudication and the principle of execution. The former is the normative standard of moral evaluation, while the latter denotes the incentive for performing an obligatory action. This distinction is significant in that it anticipates Kant’s mature position of combining these two principles, i.e. the moral law later becomes the supreme principle of moral judgment and (via respect) is itself the incentive to moral action. I explicate Kant’s distinction in view of the moral thought of Francis Hutcheson, Adam Smith and Christian Wolff. I challenge the dominant views which interpret Kant’s distinction in connection with Hutcheson and Smith, and argue that it is best understood in relation to Wolff’s conception of obligation. While Hutcheson’s distinction between exciting and justifying reasons is broadly similar to Kant’s distinction, Hutcheson’s account does not centre on the concept of obligation. Furthermore, I argue that Smith’s distinction between the character of virtue and the faculty of the mind by which it is recommended to us does not concern the normative and motivational moments of moral agency, but rather the meta-ethical question of the nature of virtue and the faculty that conditions its appraisal. Finally, I show that Wolff’s conception of obligation involves normative and motivational aspects conceptually similar to Kant’s distinction between the two principles of obligation.

具体打击错误的处断原则分析

具体打击错误的处断原则分析

THE FUNDAMENTAL PRINCIPLES OF RECUSAL OF A JUDGE AT COMMON LAW: RECENT DEVELOPMENTS

The common-law principle that no one should be a judge in his or her own cause is the basis upon which the rule against bias or apprehension of bias was founded. In constitutional parlance, this translates into the requirement that a judge or anyone under a duty to decide anything must be impartial, which is, in turn, the foundation for the recusal of a judge in adjudication. This cardinal principle of adjudication has produced an abundant case law indicating the circumstances in which a judge should, or ought to, recuse him- or herself on the ground of bias or reasonable apprehension of bias in common-law jurisdictions. This article focuses on the fundamental principles guiding the notion of recusal in the common-law courts. There is, first, a presumption of judicial impartiality, which is the preliminary but important hurdle an applicant for recusal of a judge must overcome. The inquiry proceeds no further if this presumption is not successfully rebutted early in the proceeding. The second hurdle is the test for recusal that the facts put forward in support of the allegation of bias or apparent bias must meet. This test is a two-dimensional reasonable standard test of a reasonably informed observer who would reasonably entertain an apprehension that the judge would (not might) be biased towards one party in the case. This test enables a court to determine whether the allegation of lack of judicial impartiality in any given case could lead to the recusal of the judge. The discussion that ensues is based on decided cases selected from specific Commonwealth jurisdictions where such matters have recently been dealt with. Indeed, these cases show that recusal of a judge in adjudication is, in practical terms, the application of the common-law principle of natural justice that a person cannot be a judge in his or her own cause. It is also a clear manifestation of the age-old adage that justice must not only be done, but must manifestly and undoubtedly be seen to be done.

Bridging the Gender Participatory Gap in Water and Sanitation Rights Adjudication

Abstract This article critically examines the justifications, litigation strategies, adjudicatory mechanisms and implications for strengthening gender participatory processes in domestic enforcement of the separate but critically interlinked rights to basic water and adequate sanitation services. The article first examines how the lack of women’s full, free and meaningful participation as key stakeholders both causes and contributes to gendered deprivation by examining three early leading jurisprudential examples from South Africa, Mazibuko and Others v City of Johannesburg (2009), Nokotyana and Others v Ekurhuleni Municipality (2009) and Beja and Others v Premier of the Western Cape (2011). Employing the literature on principles of adjudication and the discourse on equality, gender and dignity, the concept of ‘gender-responsive participatory justice’ (GPJ) is then put forth as a flexible analytical and strategic tool to mitigate the ad hoc gender-sensitive considerations that remain wholly inadequate to guaranteeing equality and non-discrimination commitments in practice. In doing so, the article emphasizes the critical nexus between procedure and the substantive values and functions of these rights in the form of autonomy-based equality and agency-based dignity. In the final instance, this examination is operationalized by a preliminary applied discussion of how gender-responsive deliberative principles of participation and their accompanying values can be utilized by practitioners and policy-makers to ultimately pursue proactive ways of guaranteeing that women’s participation becomes fully integrated in water and sanitation rights implementation.

In Technology We Trust? The Present and Possible Future of Private Enforcement

In the course of this study, the author examines the current and possible future implementations of advanced information and communication technologies from the point of view of private enforcement (adjudication) and specifically the way in which they may contribute to reducing the time and resource requirements of the judiciary. Firstly, the major challenges of the current judiciary are presented, including the overbearing dogmatic approach to old principles of adjudication, resulting in a timeconsuming, costly, labyrinthine, and unpredictable procedure, opening the way to private adjudication achieved via online platforms. In order for state adjudication to survive, modern technologies must be employed to achieve a data-based form of judicial process that is resource-efficient for the users of this ‘service’, while also guaranteeing a fair trial (albeit by electronic means). Such methods would include deployment of information and communication technology tools to aid court–party and party–party communication, using implementations of the blockchain to prevent evidence tampering, renouncing paper-based procedures, and embracing AI-assisted adjudication. Numerous examples of such solutions are provided, with some of their risks also emphasized such as the ‘black box’ phenomenon applicable to AI systems. The author concludes by stating that if private enforcement in the form of judiciary is to survive, it must become competitive with the dispute resolution options now being put forward by private actors.

الوسائل المستحدثة للفصل في الدعاوى الإدارية خلال مدة معقولة في النظام القانوني الفرنسي ومدى إمکانية تطبيقها أمام محاکم جهة القضاء الإداري المصري

The present study dealt with topic of the new means of adjudicating administrative cases within a reasonable period in Persian legal system and extent to which they can be applied before Egyptian administrative by dividing it into three chapters. The idea of ​​completed justice in field of administrative disputes by defining legal basis for reasonable period necessary for adjudication of administrative cases in French legal system in a first section, content of that period and criteria for determining it in another topic. In second chapter, we dealt with means of adjudicating some administrative cases within a reasonable period according to French administrative justice codification and its various amendments in this regard. Administrative, and prohibition of appealing some administrative rulings, and finally trend towards use of some electronic litigation methods in field of lawsuits and administrative appeals in four sections, respectively. In third and final chapter, we addressed extent to which Egyptian administrative judiciary embraced principle of adjudication of administrative cases within a reasonable period by dividing it into two sections. Some administrative cases within a reasonable period, such as disciplinary cases and electoral appeals, as well as what Supreme Administrative Court has adopted regarding contentment of State Commissioners body expressing its opinion orally in pleading session on subject matter of case without requiring a written report in this regard, which is trend that was blessed and embraced by Egyptian legislator in some legislations after issuance of The current constitution for 2014, most notably law of exercising political rights, law of House of Representatives, and law of National Elections Authority.

淸末 新政期 天津審判廳의 설립과 운영 ― 사법‘근대화’의 실험 ―

This article analyzes the processes, characteristics and realities of judicial reforms in Tianjin county(天津縣) during the New Policy Reform(新政) by focusing primarily on the new-type court, Tianjin Court(天津審判廳, TC). The reason why the TC was able to become China’s first “modern court” was that after the Tianjin sovereignty was transferred to the Qing dynasty in 1902, in order to reconstruct and strengthen the ruling system in Tianjin, Yuan Shikai(袁世凱), the Zhili Governor-General(直隷總督) attempted to reform the former judicial system, such as establishing the Tianjin County Judicial Bureau (天津縣發審局) and the Tianjin Police judicial bureau(南段巡警總局警讞局), which substitutingly handled the judicial function of the Tianjin magistrate.<BR> As a new-type court, the TC took various unprecedented measures. First, in relation to the organization, the positions were subdivided according to the roles of personnel, and all the selections of personnel were conducted through examinations of legal and professional understanding. It also set up a detention house(拘留所) to detain unsentenced offenders, which traditionally did not exist. Second, regarding the litigation and trial system, new methods were introduced, such as the application of accusatory system (彈劾主義裁判), the principle of adjudication based on evidence (衆證主義) and the element of double jeopardy (一事不再理). The TC specified court costs according to the size of litigation not only to prevent personnel from corrupting but also to enable the involved to predict the cost.<BR> In reality, however, existing judicial practices and perceptions still worked and constrained on these institutional reform. For example, the accusatory system could not be fully carried out due to the existing idea regard the lawyer as a litigant and the lack of understandings of the prosecution. In addition, the perception that only the confession was seen as complete evidence did not change. Furthermore, because of the public perception of proceeding and trials as a means of relieving their own regrets remained, the proceedings that ignored the formal regulation regarding trial and procedures frequently occurred, and the traditional method of settling the judgement depending on whether the parties accepted remained unchanged.<BR> In short, the situation of the TC reveals the possibilities and limitations of the transitional times, in which a new system was being introduced to the traditional Chinese society.

LEGAL REALISM AS DIRECTION OF SOCIOLOGICAL JURISPRUDENCE

The article is devoted to the disclosure of features of legal realism as a special direction of sociological jurisprudence. The historical prerequisites for the formation of American legal realism are considered. It was emphasized that legal realism emerged as a reaction to the formal principle of adjudication, which insisted on the need for strict adherence to case law. The leader of American legal formalism, K. Langdell, viewed law as a combination of legal concepts derived by inductively generalizing previous court decisions. It has been proven that one of the first to disagree with this approach was judges of U.S. Supreme Court Justice O. Holmes and B. Cardozo. A comparative analysis of the views of K. Llewellyn and J. Frank, who are recognized leaders of the movement of legal realism, was done. It was established that K. Llewellyn considered that law is not only the judge decide but also any other persons with powers over the disputes. He paid particular attention to the study of the activities of the High Courts and emphasized the need to use the so-called Grand-style in the judicial decision-making process, which allows the law to be adapted to the real circumstances of the case and to contemporary social change. In contrast, J. Frank insisted that the judge was the creator of the law, and that the courts of first instance played a major role in the administration of justice. In his opinion, one of the decisive factors in the administration of justice is the personality of the judge, his individual and psychological qualities. It has been found that despite the lack of unity of positions of the supporters of legal realism, they are united by the underestimation of positive law as a factor of certainty and stability of legal relations, an instrumental approach to law and excessive psychologization of the judicial process. It is concluded that despite the significant shortcomings inherent in legal realism, this line of legal thought has made a significant impact on the general theory and philosophy of law through the combination of methods of sociological and psychological study of legal reality and the disclosure of internal mechanisms of formation judicial decisions.

On judicial autonomy and the autonomy of the parties in international adjudication, with special regard to investment arbitration and ICSID annulment proceedings

AbstractThe article addresses the relationship between judicial autonomy and the autonomy of the parties principles. The issue is not addressed so much through the lens of the procedural rules on the conduct of the proceedings, as through the prism of the general principles of adjudication which dictate the boundaries of judicial, or arbitral, decision-making. The focus will be on the combination between the principles ne, ultra and infra, petita and non liquet as they flow from the consensual nature of international adjudication and arbitration, on the one hand, and the principle jura novit curia which mirrors the autonomy of the judicial function, on the other. The analysis does not draw from national legal systems, nor from commercial arbitration. Due to the significantly different configuration of the principles at issue in different jurisdictions, it will focus on international litigation as an autonomous phenomenon. It will address firstly inter-state adjudication and then international investment arbitration. Special attention will be given to the ICSID system in consideration of its unique annulment mechanism. The article draws from researched case law an encouragement, if not simply the need, for international adjudicative bodies to undertake a proactive attitude in the conduct of the proceedings. More generally potentials emerge from the analysis, to the effect that not only inter-state adjudication may impact on investor-state arbitration, but also vice versa.

Valedictory

The packet consists of seven humorous pieces.I. “Appellate Insight.”II. “One Dozen (Equivalent of a Duodecimal 10) Haikus.”III. “A Tetrad (Equivalent of a Ternion Plus One) of Legal Limericks.”IV. “A Baker’s Dozen of Legal Rubaiyat.”V. “Alternative Professional History.”VI. “Final Exam: Contracts.”VII. “With Security and Efficiency For All.”Part I is an appellate opinion, in which the judge chooses one or another principle of adjudication, to decide disputed points the way he wants. Two of many actual examples of related principles, which justices and judges can use to reach the desired adjudicative goal:History. The long history of the postal monopoly under Article I, section 8, clause 7 of the United States Constitution is determinative of the authority of the United States Postal Service to restrict letter boxes to receipt of mail which bears postage. Regents of University of California v. Public Employment Relations Board (1988).The long history of apportionment of seats in state legislatures, under sections of state constitutions which allow one representative for each county, population regardless, is not determinative of the authority of states to do so. Reynolds v. Sims (1964).First Congress. A law passed by the First Congress, many of the members of which were delegates to the Constitutional Convention, is an “exposition of the highest authority.” Patton v. United States (1930).The Supreme Court may declare that a law passed by the First Congress is unconstitutional. Fairbank v. United States (1901).Parts II, III, and IV are in poetic forms. Legal subjects range from contracts to international courts to real property to the UN, and from the Constitution to judicial policy-making. There is a story about attending law school, practicing law, trial judges, appellate judges, and quitting the practice of law.Part V is a lawyer’s what-if resume. “The Road Not Taken,” as Robert Frost put it.Part VI is a contracts case, based on a date-related tiff between a man and a woman. It includes a poke at real-world trials. That is followed by 10 law-school examination questions about the case and the trial.Part VII is a Patriot Act type of order from the Department of Homeland Security.

A Sketch for a Levinasian Theory of Action

This paper sketches a Levinasian theory of action. It has often been pointed out that Levinas' ethics are incapable of providing principles of adjudication for guiding actions. However, a much more profound problem affects Levinas' metaphysical ethics and negates the possibility of adjudication and that is a patent lack of freedom from the yoke of the ethical. If ‘ethics is primordial’ indeed, then no act can be unethical in that there is no alternative possibility to the acceptance and performance of the law. In this paper, I will argue that it is from the totalization of the acceptance and performance of law ‘implicit in the subject's action’ that alternative possibilities become visible. This is to say, it is through totalization that the subject demarcates the locus for the emergence of principles, which can permit adjudication among different acts without negating the radical primacy of ethics, which is probably Levinas’ greatest contribution to the field.

Methodological Musings on the Study of ‘Kelalei Pesak’: ‘Hilkheta ke-Rav be-issurei ve-khi-Shemuel be-dinei’

This article analyses one set of principles of adjudication, hilkheta ke-Rav be-issurei ve-khi-Shemuel be-dinei , ‘the law is according to Rav in ritual matters and according to Shemuel in civil matters’. It demonstrates the methodological advantages and limitations of investigating primary textual witnesses of the Babylonian Talmud (Geniza fragments, medieval manuscripts and first printed editions) and medieval Jewish legal literature (Geonim and Rishonim) for dating principles of adjudication. Although the data collected do not enable definitive conclusions for dating the principle concerning Rav, an Oriental Geniza fragment of Talmud along with the commentaries and rulings of medieval Spanish authorities yield the conclusion that the rule concerning Shemuel can be dated to the post-talmudic period.

The Reasonableness of Article 8(4) &amp;#8211; Adjudicating Claims from the Margins

Reviewing the background debates and the drafting process behind the inclusion of a reasonableness standard in the Optional Protocol, this article argues that the reasonableness review that is contemplated in Article 8(4) must be guided by the right to effective adjudication and remedies for all ESC rights claimants. The drafting history shows that proposals for providing for an automatic “broad margin of discretion” in these cases or requiring a finding of “unreasonableness” were rejected in order to hold fast to the principle of adjudication that is inclusive of the claims of the most disadvantaged individuals and groups. The Article does recognize, however, that effective adjudication presupposes a recognition of institutional limits and appropriate roles. Ensuring access to effective remedies for claimants challenging the “entitlement system failures” leading to poverty and homelessness will require innovative approaches and remedial options that draw on and enhance the capacities of various actors, including adjudicative bodies, governments, claimant groups and human rights institutions.

Adjudication, Antisubordination, and the Jazz Connection

We live in the midst of a pervasive and sustained democratic crisis. Our society expresses a deep commitment to core notions of freedom, justice, and equality for all citizens. Yet, it is equally clear that our democracy tolerates a great deal of social and economic inequality. Membership in a socially disfavored group can (and often does) profoundly distort one's life chances and opportunities. Our constitutional democracy acknowledges this tension, providing for both majority rule and the protection of minority rights and interests. Although we seek to safeguard minority rights and interest through express legal prohibitions on the subordination of socially disfavored groups, our society nevertheless retains informal structures and networks that have the effect of perpetuating social inequality among groups - social inequality that was once secured by formal law. Confronted with entrenched and destructive patterns of social and economic stratification, what more can law do to realize democracy for members of subordinated groups? This paper offers some preliminary thoughts on how law should respond, and in particular, what we might ask of judges and the Constitution that they interpret and uphold. The paper presents a normative and descriptive account of successful judging in constitutional civil rights cases in a democratic society. By successful, I mean to describe a style of judging that is self-consciously engaged in the constructive enterprise of giving full meaning and content to minority rights in a manner consistent with the best of the American democratic tradition of freedom and majority rule. Successful judging, then, is judging deliberately styled to realize democracy for subordinated groups in American society. I seek to accomplish three main tasks in this paper. First, I argue for a particular understanding of the judicial role within our constitutional democracy in the contentious area of race relations. Second, I argue that judges committed to realizing democracy for members of socially disfavored groups should embrace an antisubordination interpretation of the Fourteenth Amendment and the Court's equality jurisprudence as a guiding principle of adjudication for constitutional cases that pit the rights and interests of socially disfavored and minority groups against majority rule. Third, I provide a functionalist account for how this idealized style of adjudication works. Drawing upon the insights and impressions of free jazz movement and musician Ornette Coleman in particular, I argue that the hallmarks of Coleman's work - freedom, improvisation, reimagination, and courage - serve as useful points of departure for deepening our understanding of what judges committed to realizing democracy for members of subordinated groups do or ought to do.

Structuring Criminal Codes to Perform Their Function

This paper argues that criminal codes have two distinct functions. First, a code must ex ante announce the rules of conduct. Second, it must set out the principles of for adjudicating, ex post, violations of those rules. These two functions often are in tension with one another. Each calls for a different kind of code, addressed to a different audience, with different objectives: To be effective ex ante, the rules of conduct must be formulated in a way that they will be understood, remembered, and able to be applied in daily life by lay persons with a wide range of abilities and from a wide variety of backgrounds. Effectiveness in announcing the rules of conduct requires simple, clear, and preferably objective rules. In contrast, the goal of the principles of adjudication -to assess ex post the degree of liability and punishment, if any, due for a violation of the rules of conduct - often requires nuanced, subjective, and sometimes complex judgements, at least as nuanced, subjective, and complex as our notions of justice. The paper makes the case for two distinct code documents, each drafted to best perform its function, and explores how this can be done.

Rules of Conduct and Principles of Adjudication

I. Rules of Conduct and Principles of Adjudication: The Distinction and Its Implications 730 II. Rules of Conduct and Principles of Adjudication in Current Doctrine 733 A. The Distinction Applied to Current Doctrine.. 733 1. Objective elements of an offense 733 2. Secondary prohibitions ........ 734 3. State of mind elements ........ 736 4. Culpability mental states vs. criminalization mental states 739 5. Omission rules and the voluntary act requirement 739 6. Justification defenses ......... 740 7. Result elements and causation requirements 742 8. Imputation of culpability mental elements. 743 9. Excuse defenses 744 B. Examples of the Problematic Mixture of Rules of Conduct and Principles of Adjudication .... 745 1. Risk-creation vs. risk-taking 745 2. Justification vs. mistake as to justification . 749 C. Some Classification Challenges . .752 1. The consent defense .753 2. De minimis violations .754 D. Summary . .755 III. The Need for Different Drafting Strategies for Rules of Conduct and Principles of Adjudication ....... . 758 A. Drafting Strategies 758 B. Drafting Rules of Conduct . 759 C. Drafting Principles of Adjudication . ........ 761 IV. Proposals ...... . 765

Wages and Prices--A Case Study

THIS paper will show how the method of correlation analysis can be applied to specific wage-price problems as they relate to an individual corporation or to whole industry, and how it can be of use in the fact finding phase of negotiations seeking to solve the problems. The corporation considered is the United States Steel Corporation. The industry used as an example is the automotive industry.2 Fact finding alone will not solve the economic conundrum of how to divide a common possession in such manner as to give one partner more without giving the other less. I John Bates Clark pointed that out 50 years ago. But he hoped then, as he observed the collision of the massed forces of capital and labor, for plan of division obviously as to settle once and for all the question of proportionate -shares, and to concentrate the energies of all on the securing of large product. 4 President Truman in the fall of I945 hoped that his Fact Finding Boards would, by uncovering the facts underlying wage disputes, hit upon the plan obviously just that the force of public opinion would compel agreement. Beginning with the General Motors Fact Finding Board and going right down the line, these high hopes have not been fulfilled. Without principles of adjudication agreed to by all parties, facts alone cannot settle disputes. If, for example, the to pay principle were eliminated as criterion in wage-price disputes, the facts on the profits of an industry or firm would be considered irrelevant. Similarly, if the engendering of inflationary forces were of no concern to the government, the magnitude of price increases would be of little consequence, and facts on costs and profits would become unnecessary. It is sometimes thought that the intervention of the government in wage and price negotiations makes necessary the employment of complicated statistical procedures involving many assumptions. Such position implies that if there were no wage and price control and prices and wages were determined by the market and free collective bargaining, the use of such techniques and assumptions would become unnecessary. Perhaps the use of correlation techniques by the OPA in the Little Steel formula negotiations of I944, and by the Fact Finding Board in the General Motors case in I945, is responsible for this view. In actual fact, any firm contemplating price or wage change must have some notion of the effects of its action on its revenues, costs, and profits. If wage agreements are arrived at by bargaining without the intervention of government, the firm must implicitly assume some productivity level for the period of the wage contract, some level of production, of prices which it will probably pay, and of prices which it will probably charge. If the wage contract is for one year, then in effect the firm is predicting these variables for the next year. Whether or not it does so by methods of correlation analysis is largely accidental. What is argued here is that objective statistical analysis can be extremely useful in answering the questions which must be answered, whether or not there is government participation in wage negotiations or government control of prices. To be sure when there is no price control, the ability to change prices within the scope of competitive market allows for the relatively The opinions expressed in this paper are purely personal and do not necessarily reflect the views of the Antitrust Division of the Department of Justice or of any other agency of the federal government. 2The data used for the United States Steel Corporation are published in the annual report of the corporation to its stockholders. The analysis and methods follow that of the OPA report entitled Steel Industry: Prices, Profits and Costs (August, I944) prepared by the author. The analysis for the automobile industry is based on non-confidential data published by various government agencies. The data and methods used in analyzing the automobile industry were worked up by J. Harvey Edmonston and the author and presented by the Department of Commerce to the General Motors Fact Finding Board. A summary of the conclusions of the automotive report appeared in the Weekly Report to the Secretary of Commerce of October 24, I945. 'John Bates Clark, The Philosophy of Wealth (I894), p. I83. 4bid.