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Access_open Professional Ethics for Judges – Lessons Learned from the Past. Dialogue as Didactics to Develop Moral Leadership for Judges

Special Issue on Education in (Professional) Legal Ethics, ­Emanuel van Dongen & Jet Tigchelaar (eds.)

Journal Law and Method, July 2021
Keywords professional ethics, ethical dilemmas, judiciary, independence
Authors Alex Brenninkmeijer and Didel Bish
AbstractAuthor's information

    There is an intimate link between good conduct by judges and the rule of law. The quintessence of their role is that judges shape a trustworthy and fair legal system from case to case. Ethical trading is not carved in granite, and judges must determine their course on different levels. First, it concerns personal conduct and requires integrity and reliability. On the second level, the challenge is to achieve proper adjudication by conducting a fair trial in accordance with professional standards. Third, judges exercise discretion, in which normative considerations run the risk of becoming political. They should act independently as one of the players in the trias politica. A triptych of past cases illustrate moral dilemmas judges may encounter in their profession. Calibrating the ethical compass is not an abstract or academic exercise. A dialogue at the micro (internal), meso (deliberation in chambers) and macro levels (court in constitutional framework) could be incorporated in the legal reasoning as a didactic framework to make future judges aware of their ethical challenges.


Alex Brenninkmeijer
A.F.M. Brenninkmeijer, PhD is Member of the European Court of Auditors, Luxembourg. Professor of Institutional Aspects of the Rule of Law at Utrecht University.

Didel Bish
D.A. Bish, LLM is a trainee at the European Court of Auditors, Luxembourg.

    Legal doctrinal scholarship engages with the problems of legal practice: it systematizes, comments on, evaluates and debates what goes on in law. These activities do not occur in a vacuum: they are embedded in scholarly traditions and theories. This paper discusses the role of the theoretical frameworks used in legal research and has two related aims. First, it aims to provide some practical conceptualizations and guidelines regarding theoretical and normative frameworks that are useful to understand and conduct legal research. Second, it aims to investigate the relationships between different kinds of normative frameworks and their relationship to empirical work. In the second part, an argument is made for a pragmatist understanding of the interplay between normative theorizing and empirical study. How do these work together in judgments about the state of the law?


Sanne Taekema
Erasmus School of Law, Rotterdam; taekema@law.eur.nl.

    The purpose of this article is to investigate whether the notion of an interest should be taken more seriously than the notion of a right. It will be argued that it should; and not only because it can be just as amenable to the institutional taxonomical structure often said to be at the basis of rights thinking in law but also because the notion of an interest has a more epistemologically convincing explanatory power with respect to reasoning in law and its relation to social facts. The article equally aims to highlight some of the important existing work on the notion of an interest in law.


Geoffrey Samuel
Professor of Law, Kent Law School, The University of Kent, Canterbury, Kent, U.K. This article is a much re-orientated, and updated, adaption of a paper published a decade ago: Samuel 2004, at 263. The author would like to thank the anonymous referees for their very helpful criticisms and observations on an earlier version of the manuscript.

    This paper raises two methodological questions from a philosophical perspective: (i) what is involved in a functionalist approach to law and (ii) what should be the focus of such an approach? To answer these questions, I will take two steps with both. To begin with, I argue that Pettit’s view on functionalist approaches may be made relevant for law; functionalist accounts target a virtual mechanism that explains why a system will be resilient under changes in either the system or its environment. Secondly, I make a distinction between two interpretations of his key-concept ‘resilience’, one in mechanical, the other in teleological terms. With regard to the second question I will take two steps as well. I argue why it does not make sense to ascribe wide functions to law, followed by a plea for a limited view on the function of law. This limited view is based on a teleological understanding of the law’s resilience. I argue that these two modes are interrelated in ways that are relevant for the interdisciplinary study of law.


Bert van Roermund

    This article addresses the problem of qualitative interviewing in the field of legal studies, and more precisely the practice of interviewing judges. In the last five years the authors of this article conducted two different research projects which involved interviewing judges as a research method. In this article the authors share their experience and views on the qualitative interviewing method, and provide the reader with an overview of the ‘ins’ and ‘outs’ attached to this tool, but also its advantages and disadvantages.


Urszula Jaremba
Urszula Jaremba is an Assistant Professor of EU Law at Erasmus School of Law (Erasmus University Rotterdam, the Netherlands)

Elaine Dr. Mak
Elaine Mak is Endowed Professor of Empirical Study of Public Law, in particular of Rule-of-Law Institutions, at Erasmus School of Law (Erasmus University Rotterdam, the Netherlands)
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