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Conscience and Love in Making Judicial Decisions

  • Book
  • © 2001

Overview

Authors:
  1. Alexander Nikolaevich Shytov

    1. Department of Law, Stavropol State University, Stavropol, Russia
      Commercial Law and Ethics, Mae Jo University, Chiang Mai, Thailand

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Part of the book series: Law and Philosophy Library (LAPS, volume 54)

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Table of contents (13 chapters)

  1. Front Matter

    Pages i-xvi
    Download chapter PDF

  2. Conscience and Legal Reasoning

    1. Legal Reasoning in the Theory of Petrazycki

      • Alexander Nikolaevich Shytov
      Pages 1-21

    2. Thomas Aquinas on Conscience

      • Alexander Nikolaevich Shytov
      Pages 22-37

    3. Aquinas’s Theory of Conscience and Legal Reasoning

      • Alexander Nikolaevich Shytov
      Pages 38-53

    4. Theories of Legal Reasoning and Types of Judicial Conscience

      • Alexander Nikolaevich Shytov
      Pages 54-73

  3. Agapic Casuistry in Judicial Decision Making

    1. The Method of Casuistry

      • Alexander Nikolaevich Shytov
      Pages 74-84

    2. Love as the Source of Agapic Casuistry

      • Alexander Nikolaevich Shytov
      Pages 85-104

    3. Impartial Sympathy as an Implication of Agapic Casuistry

      • Alexander Nikolaevich Shytov
      Pages 105-129

    4. Watchfulness as an Implication of Agapic Casuistry

      • Alexander Nikolaevich Shytov
      Pages 130-148

  4. Agapic Casuistry in Action

    1. Natural Justice and Conscience of the Judges in Case Ridge V. Baldwin

      • Alexander Nikolaevich Shytov
      Pages 149-165

    2. Sympathy Judgements and the Declaratory Power of the High Court of Justiciary

      • Alexander Nikolaevich Shytov
      Pages 166-186

    3. Sympathy Judgements of Conscience in the Russian Constitutional Court

      • Alexander Nikolaevich Shytov
      Pages 187-204

    4. Sympathy Judgements of Conscience in the European Court of Human Rights

      • Alexander Nikolaevich Shytov
      Pages 205-230

    5. Conclusions

      • Alexander Nikolaevich Shytov
      Pages 231-232

  5. Back Matter

    Pages 233-245
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Keywords

About this book

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 well­ 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.

Authors and Affiliations

  • Department of Law, Stavropol State University, Stavropol, Russia

    Alexander Nikolaevich Shytov

  • Commercial Law and Ethics, Mae Jo University, Chiang Mai, Thailand

    Alexander Nikolaevich Shytov

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