REASON-GIVING IN COURT PRACTICE: THE EXAMPLE OF FRENCH IMMIGRATION LITIGATION
Abstract: This Article examines the thesis according to which the practice of giving reasons for decisions is a central element of liberal democracies. In this view, public institutions’ practice—and sometimes duty—to give reasons is required so that each individual may view the state as reasonable...
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| Format: | Article |
| Language: | English |
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Universidade do Oeste de Santa Catarina
2012-10-01
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| Series: | Espaço Jurídico |
| Online Access: | https://portalperiodicos.unoesc.edu.br/espacojuridico/article/view/2008 |
| _version_ | 1818566028830965760 |
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| author | Mathilde Cohen, Columbia Law School-School of Law, Estados Unidos |
| author_facet | Mathilde Cohen, Columbia Law School-School of Law, Estados Unidos |
| author_sort | Mathilde Cohen, Columbia Law School-School of Law, Estados Unidos |
| collection | DOAJ |
| description | Abstract: This Article examines the thesis according to which the practice of giving reasons for decisions is a central element of liberal democracies. In this view, public institutions’ practice—and sometimes duty—to give reasons is required so that each individual may view the state as reasonable and therefore, according to deliberative democratic theory, legitimate. Does the giving of reasons in actual court practice achieve these goals? Drawing on empirical research carried out in a French administrative court, this Article argues that, in practice, reason-giving often falls either short of democracy or beyond democracy. Reasons fall short of democracy in the first case because they are transformed from a device designed to “protect” citizens from arbitrariness into a professional norm intended to “protect” the judges themselves and perhaps further their career goals. In the second case, reasons go beyond democracy because judges’ ambitions are much greater than to merely provide petitioners with a ground for understanding and criticizing the decision: they aim at positively—and paternalistically in some instances—guiding people’s conduct. The discussion proceeds by drawing attention to social aspects that are often neglected in theoretical discussions on reason-giving. A skeptical conclusion is suggested: one can rarely guarantee that any predetermined value will be achieved by the giving of reasons. The degree to which individuals are empowered by the reasons given to them is dependent on the way in which decision-givers envision their reason-giving activity, and this representation is itself conditioned by the social setting of the court.
Keywords: Arbitrariness. Reason-giving. Judges. |
| first_indexed | 2024-12-14T01:48:28Z |
| format | Article |
| id | doaj.art-5d7ba096c2df4a3d9249172441308380 |
| institution | Directory Open Access Journal |
| issn | 1519-5899 2179-7943 |
| language | English |
| last_indexed | 2024-12-14T01:48:28Z |
| publishDate | 2012-10-01 |
| publisher | Universidade do Oeste de Santa Catarina |
| record_format | Article |
| series | Espaço Jurídico |
| spelling | doaj.art-5d7ba096c2df4a3d92491724413083802022-12-21T23:21:28ZengUniversidade do Oeste de Santa CatarinaEspaço Jurídico1519-58992179-79432012-10-0113esp2008REASON-GIVING IN COURT PRACTICE: THE EXAMPLE OF FRENCH IMMIGRATION LITIGATIONMathilde Cohen, Columbia Law School-School of Law, Estados Unidos0Columbia Law SchoolAbstract: This Article examines the thesis according to which the practice of giving reasons for decisions is a central element of liberal democracies. In this view, public institutions’ practice—and sometimes duty—to give reasons is required so that each individual may view the state as reasonable and therefore, according to deliberative democratic theory, legitimate. Does the giving of reasons in actual court practice achieve these goals? Drawing on empirical research carried out in a French administrative court, this Article argues that, in practice, reason-giving often falls either short of democracy or beyond democracy. Reasons fall short of democracy in the first case because they are transformed from a device designed to “protect” citizens from arbitrariness into a professional norm intended to “protect” the judges themselves and perhaps further their career goals. In the second case, reasons go beyond democracy because judges’ ambitions are much greater than to merely provide petitioners with a ground for understanding and criticizing the decision: they aim at positively—and paternalistically in some instances—guiding people’s conduct. The discussion proceeds by drawing attention to social aspects that are often neglected in theoretical discussions on reason-giving. A skeptical conclusion is suggested: one can rarely guarantee that any predetermined value will be achieved by the giving of reasons. The degree to which individuals are empowered by the reasons given to them is dependent on the way in which decision-givers envision their reason-giving activity, and this representation is itself conditioned by the social setting of the court. Keywords: Arbitrariness. Reason-giving. Judges.https://portalperiodicos.unoesc.edu.br/espacojuridico/article/view/2008 |
| spellingShingle | Mathilde Cohen, Columbia Law School-School of Law, Estados Unidos REASON-GIVING IN COURT PRACTICE: THE EXAMPLE OF FRENCH IMMIGRATION LITIGATION Espaço Jurídico |
| title | REASON-GIVING IN COURT PRACTICE: THE EXAMPLE OF FRENCH IMMIGRATION LITIGATION |
| title_full | REASON-GIVING IN COURT PRACTICE: THE EXAMPLE OF FRENCH IMMIGRATION LITIGATION |
| title_fullStr | REASON-GIVING IN COURT PRACTICE: THE EXAMPLE OF FRENCH IMMIGRATION LITIGATION |
| title_full_unstemmed | REASON-GIVING IN COURT PRACTICE: THE EXAMPLE OF FRENCH IMMIGRATION LITIGATION |
| title_short | REASON-GIVING IN COURT PRACTICE: THE EXAMPLE OF FRENCH IMMIGRATION LITIGATION |
| title_sort | reason giving in court practice the example of french immigration litigation |
| url | https://portalperiodicos.unoesc.edu.br/espacojuridico/article/view/2008 |
| work_keys_str_mv | AT mathildecohencolumbialawschoolschooloflawestadosunidos reasongivingincourtpracticetheexampleoffrenchimmigrationlitigation |