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What courts do when they do what they do

Zglinski, Jan (2015) What courts do when they do what they do. EUI Working Papers, LAW 20 (4). European University Institute, Fiesole, Italy.

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Abstract

Courts take decisions. These decisions are based on reasons. This conventional wisdom constitutes a proposition which sounds familiar to all of us, one we grew deeply accustomed to in the course of our legal socialisation. It is against this background that the thesis suggested by the course convenors of the WHY-seminar stirred up considerable perplexity among the participants: Perhaps courts should not provide any reasoning for their decisions at all. The debate in the seminar room quickly revealed that a number of inconvenient problems arise from our seemingly innocent initial statement. If we are to believe that courts, through the exercise of legal reasoning, come to a certain conclusion (the decision), it might seem puzzling that they sometimes reason their decisions, but sometimes do not. Sometimes they give us all of their reasons to take a certain decision, sometimes they give us only some of them. Even more disturbingly, sometimes they explicitly give us a set of reasons that are not the true driving factor behind their decision, i.e. other reasons have determined the outcome. Here, at the very latest, a shade of existential angst enters the stage. There seems to be something disturbing about this inconsistent practice of the judiciary. In a legal-therapeutical exercise, we might try to explore its foundations: Why does the reason-conundrum leave us so baffled?

Item Type: Monograph (Working Paper)
Official URL: https://www.eui.eu/Research/Library/Collections/Wo...
Additional Information: © 2015 The Author
Divisions: Law
Subjects: K Law > K Law (General)
Date Deposited: 23 Sep 2019 11:42
Last Modified: 23 Sep 2019 23:28
URI: http://eprints.lse.ac.uk/id/eprint/101699

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