In a democracy, what considerations can justify or count in favor of a judicial decision in favor of one party rather than another? In order to resolve questions of this sort, legal theory requires (i) a justifiable method for assigning relative weight to competing legal considerations and resolving conflict in cases in which the considerations favoring both sides are closely balanced, (ii) an approach to reasoning in the context of disagreement regarding basic foundational assumptions, and (iii) an account of the fundamental character of a legal judgment within that structure. The most plausible strategy for satisfying these requirements is to require that legal judgments must be grounded in foundational assumptions regarding the requirements of law that are acceptable to all members of society and justified on the basis of arguments from those foundations that are, collectively, acceptable to and persuasive for all members of society. Since it will be virtually impossible to justify decisions that fail to treat like cases alike, courts can only satisfy the justification requirement imposed upon them by democratic values by aspiring to honor the requirement that like cases must be treated alike—courts honor democratic values, that is, by aspiring to principled consistency.

In the common law tradition, legal decisions are supposed to be grounded in both statute and precedent, with legal training guiding practitioners on the most important and relevant touchstones. But actors in the legal system are also human, with the failings and foibles seen throughout society. This may lead them to take methodological shortcuts, even to relying on unknown internet users for determinations of a legal source’s relevance. In this chapter, we investigate the influence on legal judgments of a pervasive, but unauthoritative source of legal knowledge: Wikipedia. Using the first randomized field experiment ever undertaken in this area – the gold standard for identifying causal effects – we show that Wikipedia shapes judicial behavior. Wikipedia articles on decided cases, written by law students, guide both the decisions that judges cite as precedents and the textual content of their written opinions. Collectively, our study provides clear empirical evidence of a new form of influence on judges’ application of the law – easily accessible, user-generated online content.

The closing act of the story concerns the drafting of the final judgment. The final task of judicial bureaucrats is to stitch together the fragmentary instructions received from the judges to create coherent and persuasive texts. Like weaving, the drafting process is all but smooth. Every time the warp meets the weft, loose threads come out which must be ironed out. Likewise, every new paragraph added to the text of a judgment reveals logical leaps, internal inconsistencies, and gaps in the reasoning that must be papered over for the decision to wield its prescriptive and symbolic authority. Despite these difficulties, the final decision – the magical artefact that makes the pride of our lot – is somehow churned out on time. Its seamless fabric, now up for scrutiny by journalists, practitioners, and scholars, carefully conceals the infinite series of choices, confrontations, and hesitations that marked every turn of the proceedings.

Proportionality has been a recurrent method of adjudication in the Inter-American Human Rights System in different types of cases – mainly, in cases of limitations of human rights and in cases of equality and nondiscrimination. This chapter focuses on the use of proportionality by the Inter-American Court in the second group of cases. First, the chapter addresses the complexity of equality and nondiscrimination positive provisions, with specific emphasis on the formulas employed by the American Convention on Human Rights. Second, it discusses the type of cases in which proportionality is useful and serves its purpose of narrowing discretion in the adjudication of equality and nondiscrimination provisions, which are those involving direct discrimination. It also presents reasons to be skeptical about the usefulness and appropriateness of proportionality in the adjudication of other types of cases, specifically those dealing with covert and indirect discrimination. The analysis also discusses the potential use of proportionality in other cases related to the substantive dimension of equality and nondiscrimination.

This chapter explores how proportionality analysis has been incorporated into the case law of the Chilean Constitutional Court and what role it has played in the review of bills that sought the introduction of transformative policies in the country. The analysis contrasts judicial reasoning in cases that are part of ordinary practice and in landmark rulings where important projects of the progressive agenda were at stake. We suggest that, while proportionality has been applied inconsistently in both ordinary and high-profile cases, in the latter, it becomes part of the different strategies that the Court uses to mediate political conflicts. Proportionality works here more as a rhetorical tool than as a method of judicial reasoning, and the outcomes of the cases seem to depend more on the political composition of the Court at the time of the decision, the strength of citizen demand for changes and the influence that interest groups exert on the Court.

In its Preamble, the Constitution of India lists dignity as one of several constitutional values. Dignity has no textual mention in the chapter on Fundamental Rights. The Supreme Court of India has, however, held dignity to be “the founding faith of the Constitution” and the “core of Fundamental Rights.” How is the special significance of dignity explained? By mapping the application of dignity by the Court, this chapter argues that judicial creativity with dignity has come at the cost of unanchored speculation about the content of dignity and uninhibited reliance on interdisciplinary academic literature. Dignity consequently figures in judicial decisions as a right, a justificatory value, and a reason for limiting individual rights. The content of dignity, however, remains perilously thin, and judicial enthusiasm has not resulted in clarity. Rather, questions arise about how extra-legal materials are employed in judicial decisions. The Indian experience, akin to several others, also raises concerns that arise when legal actors, primarily with legal expertise, employ moral and political values as justifications in constitutional rights adjudication.

This chapter argues that downplaying science in the judicial inquiry has a fundamental impact on the ways in which legitimate and persuasive reasoning can be crafted. More particularly, not respecting the cognitive authority of science undermines the epistemic legitimacy of decisions. The central yardstick in this respect is not that using more science would necessarily result in better-reasoned judgments; rather, the legitimacy of judgments hinges on how adjudicators reflect on the scientific aspects of disputes in the reasoning. The chapter identifies four types of epistemic yardsticks with which international fora justify the acceptance or rejection of a particular science-based claim. The chapter differentiates between legal, scientific, hybrid, and intuitive reasoning styles, and discusses the benefits and trade-offs of each of them in terms of factual accuracy, epistemic non-arbitrariness, practical feasibility, and preserving the judicial monopoly over adjudication. The chapter also offers solutions for remedying applicable shortcomings, and offers recommendations for selecting a sound approach to scientific knowledge in the judicial reasoning under particular circumstances.

This chapter summarizes the main findings of the book and shows that the judicial function bestows a truly interdisciplinary task on judges, which confers epistemic responsibilities on legal adjudicators. It argues that judges deciding international environmental disputes should be more active and thorough in terms of reflecting on the scientific profile of disputes both in the judicial assessment and in their reasoning.

This chapter begins the examination of the Special Court for Sierra Leone’s jurisprudence in a range of areas. It focused on Article 1(1) of the Special Court for Sierra Leone (SCSL) Statute giving that tribunal competence “to prosecute those who bear the greatest responsibility” for serious crimes committed during the Sierra Leonean conflict. The debate that arose during the SCSL trials was whether this statement constituted a jurisdictional requirement that the prosecution must prove beyond a reasonable doubt or merely a type of guideline for the exercise of prosecutorial discretion. The judges of the court split on this seemingly simple legal question. This chapter unpacks the reasoning of the SCSL. First, the chapter addresses the common ground among the judges and the Court’s ultimate conclusion that “greatest responsibility” implied that leaders, as well as the worst killers, may be prosecuted. Second, it demonstrates why the reasoning of the Appeals Chamber was results-oriented and wrong. Finally, referring to the work of other tribunals with a similar mandate, this chapter identifies the lessons of the Sierra Leone Court on greatest responsibility jurisdiction. It builds on them to offer preliminary recommendations on how the greatest responsibility confusion can be avoided when drafting personal jurisdiction clauses for future ad hoc international penal tribunals.