Contribution to Book
Truth in Adjudication—A Civil/Common Law DivideDerecho y verdad (2014)
In both common-law and civil-law jurisdictions, judges have developed distinctive customs and techniques to explain and justify their decisions. They may proceed orally from the bench or through the writing and the publishing of judicial opinions or other accompanying documents, ranging from parties’ briefs, to amici curiae, to press releases, and so forth. The two judicial cultures have established their own restrictions on the range of reasons that are appropriate for judges to mention. The purpose of this paper is to ask whether judges aim at truth when they are engaged in these explanatory and justificatory activities. And if they do, what kind of truth are they looking for? One of my main goals is to spell out the conception of truth implicit in the way courts explain their decisions and write opinions. To address this question, the paper looks at empirical and comparative law evidence of judges’ justificatory practices—especially judges sitting at high courts. The methodology consists in searching for empirical or comparative law answers to philosophical problems that are usually not treated as having such answers. Jurisprudential questions such as that of the nature of truth in the law have, I claim, practical counterparts which role agents such as judges have to solve for themselves in their institutional confines. In this study, I am interested in finding out how judges’ institutional settings influence the way in which they answer these questions for themselves. I explore judges’ conceptual understanding of the type of legal truth they are institutionally required to pursue in their decisions.
- Judicial Opinions
EditorGerman Sucar & Jorge Cerdio
PublisherTirant Lo Blanch
Citation InformationMathilde Cohen. "Truth in Adjudication—A Civil/Common Law Divide" Madrid, SpainDerecho y verdad Vol. 3 (2014)
Available at: http://works.bepress.com/mathilde_cohen/7/