AuthorShytov, Alexander Nikolaevich. author
TitleConscience and Love in Making Judicial Decisions [electronic resource] / by Alexander Nikolaevich Shytov
ImprintDordrecht : Springer Netherlands : Imprint: Springer, 2001
Connect tohttp://dx.doi.org/10.1007/978-94-015-9745-6
Descript XVI, 246 p. online resource

SUMMARY

THE CONSCIENCE OF JUDGES AND APPLICA nON OF LEGAL RULES The book is devoted to the problem of the influence of moral judgements on the result of judicial decision-making in the process of application of the established (positive) law. It is the conscience of judges that takes the central place in the research. Conscience is understood in the meaning developed in the theory of Thomas Aquinas as the complex capacity of the human being to make moral judgements which represent acts of reason on the question of what is right or wrong in a particular situation. The reason why we need a theory of conscience in making judicial decisions lies in the nature of the positive law itself. On the one hand, there is an intrinsic conflict between the law as the body of rigid rules and the law as an living experience of those who are involved in social relationships. This conflict particularly finds its expression in the collision of strict justice and equity. The idea of equity does not reject the importance of rules in legal life. What is rejected is an idolatrous attitude to the rules when the uniqueness of a human being, his wellยญ being and happiness are disregarded and sacrificed in order to fulfil the observance of the rules. The rules themselves are neither good or bad. What makes them good or bad is their application


CONTENT

I: Conscience and Legal Reasoning -- 1. Legal reasoning in the theory of Petrazycki -- 2. Thomas Aquinas on conscience -- 3. Aquinasโs theory of conscience and legal reasoning -- 4. Theories of legal reasoning and types of judicial conscience -- II: Agapic Casuistry in Judicial Decision Making -- 5. The method of casuistry -- 6. Love as the source of agapic casuistry -- 7. Impartial sympathy as an implication of agapic casuistry -- 8. Watchfulness as an implication of agapic casuistry -- III: Agapic Casuistry in Action -- 9. Natural justice and conscience of the judges in case Ridge v. Baldwin -- 10. Sympathy judgements and the declaratory power of the High Court of Justiciary -- 11. Sympathy judgements of conscience in the Russian Constitutional Court -- 12. Symapthy judgements of conscience in the European Court of Human Rights -- Conclusions


SUBJECT

  1. Philosophy
  2. Ethics
  3. Political science
  4. Law -- Philosophy
  5. Law
  6. Private international law
  7. Conflict of laws
  8. International law
  9. Comparative law
  10. Public international law
  11. Philosophy
  12. Philosophy of Law
  13. Ethics
  14. Theories of Law
  15. Philosophy of Law
  16. Legal History
  17. Private International Law
  18. International & Foreign Law
  19. Comparative Law
  20. Public International Law