Praktisch Gesproken: Alledaagse civiele rechtspleging als praktische oordeelsvorming
Practically Spoken: Everyday Civil Procedure as Practical Decisioning
This thesis is devoted to day-to-day civil justice. In the dominant view on this topic, daily judicial decision-making is considered as the application of general rules on individual cases. This vision ensues from the underlying rational-positivist frame of mind. As in the rational-positivist paradigm insufficient expression can be given to important aspects of judicial decision-making, an alternative approach will be elaborated in this study. This approach, judicial decisioning as practical decision-making rests on the pillars of hermeneutics, pragmatism and theory of practice and is closely related to the work of legal scholars Paul Scholten en Oliver Wendell Holmes Jr. The theoretical notions are illustrated with observations of and interviews with judges. In the approach of practical decision-making, rule application is considered as a social practice. Rules can only be understood within the scope of background knowledge. This study contains various illustrations how in casus the relation between a rule and a context of meaning is made. This study also gives insight in the process of fact finding in civil procedures. As demonstrated, facts do not have an immanent meaning but do get one after being put in a wider context. In the last place, various elements of decision-making will be elaborated. Attention is paid to the decisioning as social practice, its routinuous character, knowledge, moral judgment and practical wisdom. This study concludes with the exploration of the meaning of practical decision-making for daily practice and legal studies. Practical decision-making gives an interesting perspective on the actual debate about the judiciary and legal studies.
|Keywords||Charles Taylor, Hans-Georg Gadamer, John Dewey, Ludwig Wittgenstein, Oliver Wendell Holmes jr, Paul Scholten, epistomolgy: theory of knowledge, hermeneutics, judges, judicial decisioning, legal deciosioning, legal theory, philosophy of law, positivism, pragmatism, rationalism, theory of practice|
|Publisher||Erasmus University Rotterdam|
|Sponsor||Dunné, Prof. Mr. J.M. van (promotor)|
Hartendorp, R.C. (2008, April 17). Praktisch Gesproken: Alledaagse civiele rechtspleging als praktische oordeelsvorming. Erasmus University Rotterdam. Retrieved from http://hdl.handle.net/1765/12202