Reason-giving in court practice: the example of french immigration litigation

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dialnet-ar-18-ART00006089992017-11-17Reason-giving in court practice: the example of french immigration litigationCohen, MathildaArbitrarinessReason-givingJudgesThis 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.Editora Unoesc2012text (article)application/pdfhttps://dialnet.unirioja.es/servlet/oaiart?codigo=4549170(Revista) ISSN 1519-5899(Revista) ISSN 2179-7943Espaço Jurídico, ISSN 2179-7943, Vol. 13, Nº. 3, 2012, pags. 27-44engLICENCIA DE USO: Los documentos a texto completo incluidos en Dialnet son de acceso libre y propiedad de sus autores y/o editores. Por tanto, cualquier acto de reproducción, distribución, comunicación pública y/o transformación total o parcial requiere el consentimiento expreso y escrito de aquéllos. Cualquier enlace al texto completo de estos documentos deberá hacerse a través de la URL oficial de éstos en Dialnet. Más información: https://dialnet.unirioja.es/info/derechosOAI | INTELLECTUAL PROPERTY RIGHTS STATEMENT: Full text documents hosted by Dialnet are protected by copyright and/or related rights. This digital object is accessible without charge, but its use is subject to the licensing conditions set by its authors or editors. Unless expressly stated otherwise in the licensing conditions, you are free to linking, browsing, printing and making a copy for your own personal purposes. All other acts of reproduction and communication to the public are subject to the licensing conditions expressed by editors and authors and require consent from them. Any link to this document should be made using its official URL in Dialnet. More info: https://dialnet.unirioja.es/info/derechosOAI

Dialnet

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Espaço Jurídico, ISSN 2179-7943, Vol. 13, Nº. 3, 2012, pags. 27-44

English

Arbitrariness
Reason-giving
Judges

Arbitrariness
Reason-giving
Judges
Cohen, Mathilda
Reason-giving in court practice: the example of french immigration litigation

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.

Article

Cohen, Mathilda

Cohen, Mathilda

Cohen, Mathilda

Reason-giving in court practice: the example of french immigration litigation

Reason-giving in court practice: the example of french immigration litigation

Reason-giving in court practice: the example of french immigration litigation

Reason-giving in court practice: the example of french immigration litigation

Reason-giving in court practice: the example of french immigration litigation

reason-giving in court practice: the example of french immigration litigation

Editora Unoesc

2012

https://dialnet.unirioja.es/servlet/oaiart?codigo=4549170

1709712134902906880