Substantive Reasoning Research Articles

Substantive Reasoning of Religious Court Judges in Granting Compulsory Will Rights to Non -Muslims

The main problem of this study is related to the concept of Wasiat Wajibah which is not yet known in classical fiqh and the absence of provisions in Indonesian law that can be used by judges in granting the right of Wasiat Wajibah to non-Muslims. This study aims to analyze the substantive reasoning used by Indonesian religious court judges in resolving complications that occur through judicial decisions. This research uses a content analysis approach. The data source used is Decision Number 263/ Pdt.G /2007/ PTA.Sby . The decision was analyzed using the content analysis method. The data used is secondary data consisting of primary legal materials in the form of Wasiat Wajibah decisions of the Indonesian Religious Courts, as well as secondary and tertiary legal materials. The data was analyzed using a qualitative normative analysis method. The results of this study indicate that the substantive reasoning used by the judge in his decision is first, consideration of the maslahah perspective to maintain the five elements of Sharia: protection of religion ( hifzu'd -din), protection of the soul ( hifz 'un -). nafs ), maintenance of reason ( hifz al- akl ), protection of wealth ( hifz-i mal), protection of offspring ( hifz-i nasl ).

Challenging the Pervasiveness of Organizational Stupidity in Higher Education

In Short Researchers have developed the concept of organizational stupidity to explain why some organizations lack the ability or willingness to create and use knowledge resources. Indicators of organizational stupidity include a lack of reflexivity, failure to provide justifications for decisions and actions, and avoidance of substantive reasoning. The management practices of higher education institutions could be inadvertently reinforcing cultures of organizational stupidity. This article highlights the effects of organizational stupidity on colleges and universities and proposes steps that leaders can take to establish instead a culture of critical reflection, voice, and meaningful participation.

Functional Stupidity in the Boardroom

This study provides a better understanding of the dynamics of knowledge and expertise in the context of public companies’ compensation committees (CCs), through a focus on CC members’ cognitive limitations. Drawing on semi-structured interviews, we mobilize the concepts of reflexive thinking and functional stupidity (Alvesson and Spicer 2012) to document and analyze CC members’ difficulties and/or unwillingness “to use cognitive and reflective capacities in anything other than narrow and circumspect ways” (Alvesson and Spicer, 2012: 1201). Overall, our findings indicate that CC members, although being firmly committed to knowledge development and problem solving, are disinclined to mobilize three key aspects of cognitive capacity (i.e., reflexivity, meaningful justification and substantive reasoning) in the design of remuneration policies. Our study also shows that these cognitive limitations are fuelled by a multidimensional exercise of power, which we conceive of as a form of “stupidity management” (Alvesson and Spicer 2012). The latter aims to limit CC members’ meaningful communicative action by constraining disruptive thinking and preventing critical issues from impacting committees’ agenda and deliberations – all of this in the name of aspirational yet superficial forms of decision-making leadership in the boardroom. Our analysis also highlights the central role of compensation consultants as “stupidity managers”, involved in the orchestration of the constraining of committee members’ mind. Significant implications of these findings for research and policy-making are discussed.

'Fostering critical engagement rather than blind devotion': calling for transdisciplinary microbiology research.

'Fostering critical engagement rather than blind devotion': calling for transdisciplinary microbiology research.

The Illusory Trust Doctrine: Formal or Substantive?

"A document is put before us. Does it or does it not create a trust?" This article considers the illusory trust doctrine (ITD) and claims that although the ITD has been criticised as doctrinally unfounded and therefore based in substantive, non-legal reasons rather than pre-existing law, there are formal reasons of trusts law to support it. It begins by considering Atiyah and Summers' concepts of form and substance, and then examines how they apply in the context of equity (in general), and then trusts law (in particular). It then briefly considers a number of recent decisions on the ITD: the four cases constituting the Clayton v Clayton litigation in New Zealand, Pugachev and the Cook Islands Court of Appeal and Privy Council decisions in Webb v Webb. Finally, it analyses these ITD decisions using the form and substance distinction, concluding that it is arguable that the ITD is grounded in principles of established trust law, as opposed to purely substantive reasoning.

Armando Carvalho and Others v. EU: Invoking Human Rights and the Paris Agreement for Better Climate Protection Legislation

AbstractThis contribution takes the form of an uncommon case report. It discusses an action brought to the Court of Justice of the European Union (CJEU) before the final decision has been rendered. The author believes this is justified because the innovative character of the procedural and substantive reasoning of the application could be of interest to a wider public. This may be the case even if the CJEU eventually dismisses the action as being inadmissible, leaving the substantive questions undecided. The applicants in Carvalho and Others v. European Union claim that European Union (EU) law does not limit greenhouse gas (GHG) emissions as strictly as is required by EU human rights and international law. The case note explains the parties in the case, the acts being challenged, the relief being sought, and the content and application of the relevant procedural and substantive law. The case is illustrative of the high barriers for direct access to the CJEU, and suggests how they might be overcome. It is also a laboratory for examining the interface of climate science, economics, and law. At this interface, available emissions budgets and the technical and economic feasibility of emissions reductions are calculated and made legally relevant. Carvalho is based on the applicants’ conviction that, where the EU assumes a regulatory competence such as that of GHG emissions reduction, it must exercise it in accordance with its human rights and international obligations.

Standing on Unsteady Ground: AREVA NP Incorporated in France v Eskom SOC LTD

Areva NP Incorporated in France v Eskom Holdings SOC Ltd 2017 6 BCLR 675 (CC) was a dispute over a multi-billion-rand tender. Although the majority of the Constitutional Court recognised the public importance of the case, it adjudicated the dispute entirely on a preliminary point. It found that the applicant did not have legal standing to seek the judicial review of the award of the tender.
 This case note has three aims. First, I will argue that the Constitutional Court's majority judgment in Areva was generally unpersuasive. Second, I will attempt to show that Areva exposes an unresolved legal question: when should a court consider the merits of a case made by a litigant with questionable standing? Third, I will propose a method for resolving this question by way of substantive judicial reasoning in any given case.
 

Analogical Reasoning by Reference to Statute: What is the Judicial Function?

Analogy by reference to statute as a tool of legal analysis in the development of the common law is not prohibited. Recent cases confirm not only the existence of the tool but provide evidence of its use and application. However, to state that the judiciary on occasion develops the common law by analogy to statute – a concept that has been labelled the ‘doctrine of analogy’ – is simply to make a statement of conclusion. And that statement of conclusion invites several further questions. Is analogical reasoning by reference to statute qualitatively different from the usual type of analogical reasoning on which the common law depends? From what authority is this mode of reasoning derived? Put in different terms – what is the judicial function? This paper proposes that viewing the development of the common law through the lens of formal rules and substantive reasoning can assist in identifying the way the judiciary develops the common law by reference to statute, and the basis upon which the judiciary develops the common law by reference to statute.

Race as/and the Trace of the Ghost: Jurisprudential Escapism, Horizontal Anxiety and the Right to be Racist in Boe Trust Limited

This contribution draws on critical race theory and critical legal theory in order to read and critique the Supreme Court of Appeal judgment of Erasmus AJA in BoE Trust Limited 2013 3 SA 236 (SCA). It will specifically focus on the contested jurisprudential and racial politics reflected in the reasoning followed in the judgement. It specifically takes issue with the way in which the judge avoided dealing directly with the constitutional and political implications of racially-exclusive testamentary provisions. Three specific features of the judgment are highlighted in the note as problematic: first, the rhetorical moves and ‘legal interpretive techniques’ by which the judge escaped the basic legal texts governing the situation in which a racially discriminatory provision is included in a will, as well as the substantive reasoning and normative choices that those texts necessarily invite. Secondly, how the escape from those legal texts evinces, or perhaps even facilitated, a certain evasion of, or anxiety towards the horizontal application of the Bill of Rights which explicitly proscribes overt (racial) discrimination by private non-state actors. And thirdly, how by following a formalist legal approach, one in which the basic assumptions of liberal legalism and capitalism are viewed as natural, normal and immutable, the judgment lacks a decisive rejection of racism. The judgment’s uncritical adulation of the common law of succession (and specifically the principle of freedom of testation) and its negation of a more substantive, constitutionally-infused mode of reasoning and adjudication generally reflects a conservative or traditional view of law. It is suggested that this view of law is problematic in our current post-apartheid context for two central reasons: it stands in tension with the project of transformative constitutionalism and prevents the coming into being of a more critical race jurisprudence for post-apartheid South Africa.

Administração do Desenvolvimento na perspectiva Guerreirista: conceitos, contribuições e implicações

Resumo: Percebe-se, hoje, um interesse, por parte dos pesquisadores da área dos Estudos Críticos em Administração (ECA) e dos Estudos Críticos em Desenvolvimento (ECD), em incluir o fenômeno da gestão do desenvolvimento nas suas investigações. Entretanto, constata-se que na década de 1960 já havia uma preocupação, por parte de Guerreiro Ramos, em relacionar o fenômeno da gestão com o do desenvolvimento das nações. Neste artigo, revisita-se o pensamento de Alberto Guerreiro Ramos, de modo a verificar as contribuições desse teórico para o campo da Administração do Desenvolvimento. Trata-se de um estudo exploratório de natureza bibliográfica das obras nas quais o autor, direta ou indiretamente, versou sobre a temática da gestão do desenvolvimento. O resultado das análises revela que alguns conceitos centrais, como fato administrativo, racionalidade substantiva, homem parentético e sociedade multicêntrica, são fundamentais para a compreensão da Administração do Desenvolvimento, como campo que se propõe a estudar a gestão das relações sociais de produção, distribuição e consumo dos países, regiões, lugares e/ou organizações.

Policy Attitudes in Institutional Context: Rules, Uncertainty, and the Mass Politics of Public Investment

This article examines the link between citizens’ policy attitudes and the institutional context in which policies are carried out. The article develops a theory of opinion formation toward policies that impose costs on citizens in order to invest in broadly valued social goods. In this framework, problems of agency loss and time inconsistency leave citizens uncertain about whether promised policy benefits will be delivered. Citizen support for public investments thus depends on whether the institutional context makes elites’ policy promises credible. We consider hypotheses about how the institutional allocation of authority and the institutional rules governing implementation affect citizen support for public investment, and we find broad support for the framework in three survey experiments administered to representative samples of U.S. citizens. The results shed light on the link between political institutions and citizens’ attitudes, the capacities of voters for substantive political reasoning, and the political prospects for public investment.

INTRODUCING DECONSTRUCTIVE INTERSECTIONALITY: THE GENERAL JURISPRUDENTIAL RAGE AGAINST RAINBOW THEORY

Despite South Africa’s post-modern constitutional dispensation which, at first glance, seems to celebrate and entrench substantive equality — various judgements have been passed by the Constitutional Court where the Constitution was interpreted through a formal equalitarian lens. On the one hand, substantive equality recognises and celebrates our diversity and differences whereas formal equality, on the other hand, obsesses with the idea of sameness. This constant tension between substantive and formal equality is aptly portrayed by the term ‘rainbow jurisprudence’. This term was coined by Alfred Cockrell to explain a quasi-theory depicted by the newly born South African constitutional adjudication which was lacking in substantive reasoning (which I equate to substantive equality) and the absence of a rigorous jurisprudence. He goes so far as to assimilate the finding of genuine substantive reasoning within these judgements to the possibility of touching a rainbow — a mythical task which, although alluring, seems impossible. Thus, I have identified the problem that South Africa is still submerged in rainbow jurisprudence. This can be seen through various court cases that will be discussed below, ranging from cases that were clearly decided from a formal equalitarian perspective to those which depict a wolf in sheep’s clothing seemingly substantive judgements disguising the formal equality lurking beneath.

El incorporacionismo entre la espada del realismo moral y la pared del positivismo excluyente

De acuerdo con Juan Carlos Bayón, el positivismo jurídico incluyente es inconsistente, por cuanto sus presupuestos alegadamente convencionalistas serían incompatibles con las consecuencias de la incorporación de principios morales como criterios de validez jurídica que esta corriente teórica asume como posibles. Concretamente, el positivismo incluyente enfrentaría un dilema: si sostiene que el derecho remite al juez a la moral positiva para la identificación de contenidos normativos, colapsa con la versión excluyente; si en cambio sostiene que el derecho remite al razonamiento moral sustantivo, se ve obligado a abandonar sus presupuestos convencionalistas, en favor del realismo moral. En este trabajo analizaré esta crítica de Bayón, e intentaré proponer un argumento con el cual afrontar dicho cuestionamiento.

Race as/and the Trace of the Ghost: Jurisprudential Escapism, Horizontal Anxiety and the Right to be Racist in <i>BoE Trust Limited</i>

This contribution draws on critical race theory and critical legal theory in order to read and critique the Supreme Court of Appeal judgment of Erasmus AJA in BoE Trust Limited 2013 3 SA 236 (SCA). It will specifically focus on the contested jurisprudential and racial politics reflected in the reasoning followed in the judgement. It specifically takes issue with the way in which the judge avoided dealing directly with the constitutional and political implications of racially-exclusive testamentary provisions. Three specific features of the judgment are highlighted in the note as problematic: first, the rhetorical moves and ‘legal interpretive techniques’ by which the judge escaped the basic legal texts governing the situation in which a racially discriminatory provision is included in a will, as well as the substantive reasoning and normative choices that those texts necessarily invite. Secondly, how the escape from those legal texts evinces, or perhaps even facilitated, a certain evasion of, or anxiety towards the horizontal application of the Bill of Rights which explicitly proscribes overt (racial) discrimination by private non-state actors. And thirdly, how by following a formalist legal approach, one in which the basic assumptions of liberal legalism and capitalism are viewed as natural, normal and immutable, the judgment lacks a decisive rejection of racism. The judgment’s uncritical adulation of the common law of succession (and specifically the principle of freedom of testation) and its negation of a more substantive, constitutionally-infused mode of reasoning and adjudication generally reflects a conservative or traditional view of law. It is suggested that this view of law is problematic in our current post-apartheid context for two central reasons: it stands in tension with the project of transformative constitutionalism and prevents the coming into being of a more critical race jurisprudence for post-apartheid South Africa.Keywords: BoE Trust Limited, Race; Colour-blindness; Formalism; Horizontal application of the Bill of Rights; Transformative constitutionalism; Critical race legal analysis; White privilege; Constitution of the Republic of South Africa; Private law.

Tracing Trajectories in Contract Law Theory: Form in Anglo-New Zealand Law, Substance in Japan and the United States

This article presents a detailed comparative history of 20th century contract law theory development primarily across four countries, drawing implications for recent law reform initiatives. It extends the framework initially proposed by Atiyah and Summers, which emphasised how the English legal system prefers greater formal reasoning in legal doctrine as well as various supporting institutions, compared to the more open-textured substantive reasoning patterns and institutions characteristic of the United States. New Zealand arguably retains strong affinities with England, whereas Japan shares many similarities with the US – in contract law theory development generally, as well as in discrete areas of contract law (analysed in other specific studies). This persistent disjuncture helps explain why England still refuses to accede to the United Nations Convention on Contracts for the International Sales of Goods (adopted by all other major trading nations, including the US and Japan), and why practitioners in other countries that have adopted the Convention – yet which follow the English law tradition, such as New Zealand but also Australia – still experience greater difficulty in applying the Convention. In addition, large-scale contract law reform including a closer alignment with such international instruments, as tentatively proposed by the Australian federal government in April 2012, faces greater obstacles in the Anglo-Commonwealth legal tradition compared to comprehensive reform initiatives that are already well advanced in Japan. More generally, the different trajectories in contract law theory development highlighted in this article call for caution about the prospects for world-wide or even regional unification or harmonisation of contract law.

The First Substantive ECJ Judgement on the Racial Equality Directive: A Strong Message in a Conceptually Flawed, and Responsively Weak Bottle

The aim of this article is to demonstrate, through close reading of the first judgment containing a substantive reasoning on the Racial Equality Directive, that in several respects the ECJ in its preliminary ruling does not provide the national court with a useful answer, as it does not respond to particular questions and because of an unsound or at least confusing way of reasoning. In this respect, the substantive clarification of the RED is not optimal. At a more procedural level the argument is developed that the ECJ should adopt, especially in preliminary ruling procedures, broad, more systematic and thus elaborate, rather than narrow, condensed rulings.

Management, skills and creativity: the purpose and value of instrumental reasoning in education discourse

Reason is a heterogeneous word with many meanings and functions. Instrumental reasoning is the ‘useful but blind’ variant that, for Horkheimer, presupposes ‘the adequacy of procedures for purposes more or less taken for granted and supposedly self-explanatory’. The paper argues that the root of instrumental reasoning is to be found in Hume and Weber and suggests that the problems associated with portraying reason as ‘inert’ or ‘formal’ underpin many areas of education policy today. A scrutiny of discourses on managerialism, skills and creativity suggests that they are not only bound by instrumental reasoning but tied to unacknowledged purposes associated with what Marcuse called ‘capitalist rationality’. The paper concludes by reflecting upon Habermas’ notion of substantive reasoning that offers education a way forward.

Form and Substance in Legal Reasoning: Two Conceptions

AbstractThere are two possible ways to understand form and substance in legal reasoning. The first refers to the distinction between concepts and their applications, whereas the second concentrates on the difference between authoritative and non‐authoritative reasons. These approaches refer to the formalistic and positivistic conceptions of the law, the latter being the author's point of departure. Nevertheless, they are both helpful means of analysis in legal interpretation. Interpretation is divided into formal and substantive justification. They have certain functions and they are utilized in interaction. Authoritative reasons and formal reasoning constitute the necessary point of departure. However, substantive reasons are also necessary in order to justify choices included in interpretation. In addition to formal and substantive reasoning, the role of legal concepts is analysed.

Fighting Crime by Fighting Misconceptions and Blind Spots in Policy Theories: An Evidence-Based Evaluation of Interventions and Assumed Causal Mechanisms

How effective are policy interventions to fight crime and how valid is the policy theory that underlies them? This is the twofold research question addressed in this article, which presents an evidence-based evaluation of Dutch social safety policy. By bridging the gap between actual effects and assumed effects, this study seeks to make fuller use of the practical relevance of evidence-based evaluations. The results reveal promising interventions and mechanisms for policy practice. In addition, the chosen approach advances current practice using evidence-based outcomes to distinguish plausible from implausible policy assumptions. An urgent need is signaled for governments to provide substantive reasoning for their policy choices. Many of the assumptions that correspond with evidence from impact evaluations relate to general prevention, often found within the strategy of situational prevention. Contrary to any general preventive or short-term effects, the assumptions regarding long-term specific prevention through law enforcement cannot be taken as read.

Substantive reasoning in administrative-law adjudication

One of the main characteristics of constitutional transformation in South Africa is what Etienne Mureinik called the shift towards a culture of justification, in which 'every exercise of power is expected to be justified'. He argued that within such a culture, constitutional rights 'are standards of justification - standards against which to measure the justification of the decisions challenged under them'.