A Comparative Analysis of Nine Jurisdictions
This book discusses how judges qualify their activities as objective. The data for this project was retrieved from a large sample of cases using Langacker’s methodology. The sample included over a thousand decisions from Brazil, Hungary, Italy, Lithuania, Slovakia, Slovenia, Spain, Romania and the UK. The decisions considered allegations of judicial bias, unfairness, and injustice. Pre-judices are shared cognitive methods that legal practitioners perceive as necessary. The results of the study directly confirm Pierre Legrand’s claims of pre-judices in legal discourse, and as corollary, Jules L. Coleman and Brian Leiter’s idea of modest objectivity in law.
Chapter 3 Objective judicial discretion cases
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Objective judicial discretion cases
As mentioned throughout this book, judicial narratives have to be perceived as objective and the existence of a pre-existing clear and specific rule provides the argument par excellence to support an objective judicial decision.238 However, in cases in which the court is asked to evaluate new legal dilemmas or cases that are seen as being within the so-called Hartian penumbra, the perception of judicial objectivity tends to be more difficult to defend. This chapter discussed the range of epistemic methods that judges adopt in cases in which there is no predetermined explicit legal rule. I called these types of instances judicial discretion cases. As in the rest of this book, the analysis relied on the cognitive textual analysis of a large sample of national cases. The textual narratives of these cases were analysed using Langacker’s methodology that is adapted to a legal analysis.239 The nine legal systems that were considered include Brazil, Hungary, Italy, Lithuania, Romania, Spain, Slovakia, Slovenia and the UK.
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