Abstract
Properly reasoned judgments are important for public trust, dignity of the parties, reflecting independent and impartial dispute resolution and ultimately the legitimacy of the judiciary and courts. At the same time, a politically and socially determined activity such as judicial reasoning will always resist evaluation based on numbers or other exact terms. There will always be special circumstances that must be considered in the evaluation of a judgment or a particular judicial practice. Besides, the constitutional requirement for judicial independence may also prevent policy makers from introducing legal or formal standards regarding the quality of judicial reasoning. It is not a coincidence therefore that that in the majority of legal systems examined focus mostly on efficiency issues when it comes to objective evaluation of the performance of the judicial system. As for evaluation and improvement of reasoning quality only certain “soft methods” can be appropriate. These kind of methods do not violate traditional understanding of judicial independence and it can be rightly assumed that members of the judiciary are professional enough to be sensitive to the results of softer quality assessment. At the same time, quality assessment cannot be separated from the institutional and social background of the assessed judicial activity.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
The origin of this quote is quite obscure, and one cannot find the exact source. Many claim that Peter Drucker said it (http://www.growthink.com/content/two-most-important-quotes-business), but according to others, he never said it at all (http://www.druckerinstitute.com/2013/07/measurement-myopia/). Some attribute it to W. Edwards Deming (https://blog.deming.org/2015/08/myth-if-you-cant-measure-it-you-cant-manage-it/). Anyhow, the fact that this saying is the part of our ‘common knowledge’ indicates its impact on our thinking. We would like to thank Francesco Contini, one of our authors, who drew our attention to this quote.
- 2.
See the program of the conference which addressed this question at https://jog.unideb.hu/hu/node/272.
- 3.
A classic example here can be Fuller’s case of Speluncean explorers (Fuller 1949). It proves that the background considerations of decision-makers about correctness play a crucial role in the evaluation of a legal solution.
- 4.
For English examples, see OFSTED reports.
- 5.
In England & Wales, the author refers to a previous case study published by the European Commission for the Efficiency of Justice in 2010.
- 6.
Kyiv Recommendations, p. 14.
- 7.
Nonetheless, even though there are slight differences between the concepts of ‘justification’, ‘judicial reasoning’ and ‘motivation’, we use these terms interchangeably throughout this volume. At the same time, it must be emphasized that we do not share the critical approach of American legal Realists and their modern followers, who state that the ‘official’ presentation of the arguments is not a reliable mirror of the actual decision-making process. For the discussion of this problem, see Chapter Obstacles and Opportunities—Measuring the Quality of Judicial Reasoning in this volume.
- 8.
In one of its decisions the ECtHR, while maintaining its position that unreasoned jury verdicts are compatible with the fair trial principle, emphasized that the understandability of the verdict is a vital safeguard against arbitrariness. Taxquet v Belgium Application No 926/05, Judgment, 16 November 2010, paras. 90 and 92.
- 9.
See Chapter “Judging and the Ethical Life” in this volume.
- 10.
See Chapter “How to Measure? An Essay on the Social Context of Measuring Quality” in this volume.
- 11.
See Chapter “The Quality of Adjudication in France” in this volume.
- 12.
See Chapter “Quality of Justice and of Judicial Reasoning in Italy” in this volume.
- 13.
See Chapters “The Quality of Justice and of Judicial Reasoning in the Czech Republic” and “Methods of Quality Assessment of Judicial Reasoning in Hungary” in this volume.
- 14.
See Chapter “Quality of Legal Decisions: The Criteria Established by the Finnish Judiciary” in this volume.
- 15.
See Chapter “The Quality of Adjudication in France” in this volume.
- 16.
See Chapter “The Quality of Justice and of Judicial Reasoning in the Czech Republic” in this volume.
- 17.
See Chapter “Quality of Justice and of Judicial Reasoning in Italy” in this volume.
- 18.
See Chapter “Methods of Quality Assessment of Judicial Reasoning in Hungary” in this volume.
- 19.
See Chapter “Quality of Legal Decisions: The Criteria Established by the Finnish Judiciary” in this volume.
- 20.
See Chapter “The Quality of Adjudication in France” in this volume.
- 21.
See Chapter “Quality of Justice and of Judicial Reasoning in Italy” in this volume.
- 22.
See Chapter “The Quality of Adjudication in France” in this volume.
- 23.
See Chapter “The Quality of Justice and of Judicial Reasoning in the Czech Republic” in this volume.
- 24.
See Chapter “Quality of Justice and of Judicial Reasoning in Italy” in this volume.
- 25.
See Chapter “Quality of Legal Decisions: The Criteria Established by the Finnish Judiciary” in this volume.
- 26.
See Chapter “Quality of Legal Decisions: The Criteria Established by the Finnish Judiciary” in this volume.
- 27.
See Chapter “Quality of Legal Decisions: The Criteria Established by the Finnish Judiciary” in this volume. p.164
- 28.
See Chapter “Quality of Judicial Reasoning: England & Wales” in this volume. p.110
- 29.
See Chapter “Quality of Judicial Reasoning: England & Wales” in this volume.
- 30.
See Chapter “Methods of Quality Assessment of Judicial Reasoning in Hungary” in this volume.
- 31.
See Chapter “The Quality of Adjudication in France” in this volume.p.143
- 32.
See Chapter “The Quality of Adjudication in France” in this volume.
- 33.
See Chapter “The Quality of Adjudication in France” in this volume. p.144
- 34.
See Chapter “The Quality of Adjudication in France” in this volume. p.143
- 35.
See Chapter “The Quality of Justice and of Judicial Reasoning in the Czech Republic” in this volume. p.178
- 36.
See Chapter “The Quality of Justice and of Judicial Reasoning in the Czech Republic” in this volume.
- 37.
See Chapter “The Quality of Justice and of Judicial Reasoning in the Czech Republic” in this volume.
- 38.
See Chapter “The Quality of Justice and of Judicial Reasoning in the Czech Republic” in this volume.
- 39.
See Chapter “The Quality of Adjudication in France” in this volume.
- 40.
See Chapter “Quality of Justice and of Judicial Reasoning in Italy” in this volume.
- 41.
See Chapter “Quality of Judicial Reasoning: England & Wales” in this volume.
- 42.
See Chapter “Quality of Judicial Reasoning: England & Wales” in this volume.
- 43.
See Chapter “Methods of Quality Assessment of Judicial Reasoning in Hungary” in this volume.
- 44.
See Chapter “Methods of Quality Assessment of Judicial Reasoning in Hungary” in this volume.
- 45.
See Chapter “Methods of Quality Assessment of Judicial Reasoning in Hungary” in this volume.
- 46.
See Chapter “The Quality of Adjudication in France” in this volume.
- 47.
See Chapter “The Quality of Justice and of Judicial Reasoning in the Czech Republic” in this volume.
- 48.
See Chapter “Quality of Legal Decisions: The Criteria Established by the Finnish Judiciary” in this volume. Furthermore, similar requirements can be found in the Administrative Judicial Procedure Act 1996. p.180
- 49.
See Chapter “Methods of Quality Assessment of Judicial Reasoning in Hungary” in this volume.
- 50.
See Chapter “Quality of Justice and of Judicial Reasoning in Italy” in this volume.
- 51.
See Chapter “Quality of Judicial Reasoning: England & Wales” in this volume.
- 52.
See Chapter “Quality of Judicial Reasoning: England & Wales” in this volume.
- 53.
For example, at Loránd Eötvös University, Budapest (ELTE), or the Academy of Sciences, Budapest. Besides, a journal was founded in 2010 dedicated exclusively to case notes and argumentative techniques.
- 54.
See Chapter “Quality of Reasoning in International Criminal Tribunals” in this volume. p.220
- 55.
Chapter ″Quality of Reasoning in International Criminal Tribunals° of this volume, p. 222. Cited from ICC, Trial Chamber III, Judgment pursuant to Article 74 of the Statute, The Prosecutor v Jean-Pierre Bemba Gombo, N° ICC-01/05-01/08, 21 March 2016 para.83
- 56.
See Chapter “Quality of Reasoning in International Criminal Tribunals” in this volume citing from The Prosecutor v Jean-Pierre Bemba Gombo, N° ICC-01/05-01/08, 21 March 2016 para. 77. p.222
- 57.
See Chapter “The Quality of Decision-Making at the Court of Justice of the European Union” in this volume.
- 58.
See Chapter “The Quality of Decision-Making at the Court of Justice of the European Union” in this volume.
- 59.
See Chapter “The Quality of Decision-Making at the Court of Justice of the European Union” in this volume.
- 60.
See Chapter “The Quality of Decision-Making at the Court of Justice of the European Union” in this volume.
- 61.
See Chapter “Reflections on Legal Reasoning in the Case Law of the European Court of Human Rights” in this volume.
- 62.
See Chapter “The Quality of Decision-Making at the Court of Justice of the European Union” in this volume.
- 63.
See Chapter “The Quality of Decision-Making at the Court of Justice of the European Union” in this volume.
- 64.
See Chapter “The Quality of Decision-Making at the Court of Justice of the European Union” in this volume.
- 65.
See Chapter “The Quality of Decision-Making at the Court of Justice of the European Union” in this volume.
- 66.
See Chapter “The Quality of Decision-Making at the Court of Justice of the European Union” in this volume.
- 67.
See Chapter “The Quality of Decision-Making at the Court of Justice of the European Union” in this volume.
- 68.
See Chapter “The Quality of Decision-Making at the Court of Justice of the European Union” in this volume.
- 69.
See Chapter “Quality of Reasoning in International Criminal Tribunals” in this volume.
- 70.
See Chapter “Reflections on Legal Reasoning in the Case Law of the European Court of Human Rights” in this volume.
- 71.
See Chapter “The Quality of Decision-Making at the Court of Justice of the European Union” in this volume.
- 72.
See Chapter “Quality of Reasoning in International Criminal Tribunals” in this volume.
- 73.
See Chapter “Reflections on Legal Reasoning in the Case Law of the European Court of Human Rights” in this volume.
- 74.
See Chapter “The Quality of Decision-Making at the Court of Justice of the European Union” in this volume.
References
Bell J (1983) Policy arguments in judicial decisions. Oxford University Press, Oxford
Cohen-Eliya M, Porat I (2011) Proportionality and the culture of justification. Am J Comp Law 59:463–490
Dworkin R (1986) Law’s empire. Harvard University Press, Cambridge, Mass
Fuller L (1949) The case of Speluncean Explorers. HLR 62:616–645
Gyford J (1991) Citizens, consumers, and councils: local government and the public. Macmillan, Bankstoke
Hirschl R (2004) The political origins of the new constitutionalism. Indiana J Glob Leg Stud 11:71–108
Lane J-E (2000) New public management. Routledge, London
Langbroek P, Dijkstra R (2017) Performance management of courts and judges: organizational and professional learning versus political accountabilities. In: Contini F (ed) Handle with care: assessing and designing methods for evaluation and development of the quality of justice. IRSIG-CNR, Bologna, pp 297–325
Ofsted reports (2017) Ofsted reports. In: Ofsted Rep. https://www.gov.uk/government/organisations/ofsted. Accessed 1 May 2017
Silveira L (2014) Discovery and justification of judicial decisions: towards more precise distinctions in legal decision-making, ReM
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2018 Springer International Publishing AG, part of Springer Nature
About this chapter
Cite this chapter
Bencze, M., Ng, G.Y. (2018). Measuring the Unmeasurable?. In: Bencze, M., Ng, G. (eds) How to Measure the Quality of Judicial Reasoning. Ius Gentium: Comparative Perspectives on Law and Justice, vol 69. Springer, Cham. https://doi.org/10.1007/978-3-319-97316-6_1
Download citation
DOI: https://doi.org/10.1007/978-3-319-97316-6_1
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-97315-9
Online ISBN: 978-3-319-97316-6
eBook Packages: Law and CriminologyLaw and Criminology (R0)