Shytov, Alexander Nikolaevich
Conscience in making judicial decisions.
PhD thesis, University of Glasgow.
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If this thesis has to be expressed in one sentence and not in many thousand words, it is the following: Judges should love all those who are affected by their decisions as they love themselves. This is the key idea of the whole thesis. The argument for the importance of the principle of love starts from the consideration of two theories: the psychological theory of law developed by a Polish-Russian academic, Leon Petrazycki, and the moral theology of Thomas Aquinas. The theory of Petrazycki, which is almost unknown in the West, is important because it grounds the principle of love in the emotions and impulsions of those who are involved in the legal process. He sees the whole law as a complex interaction of individual impulsions, among which love is the most noble. The theory of Thomas Aquinas is important because it contains a developed idea of conscience. His search for the essential characteristic of a good conscience also points to love, even though he did not articulate it clearly. The combination of both theories allows us to look at the principle of love as the essential characteristic of a good conscience from different angles, and helps us to see that the whole process of judicial decision-making is a complicated phenomenon which comprises both moral intuitions and rational deliberations.
The central place in the thesis is devoted to elaboration of the method of agapic casuistry which is a complex of skills and techniques of application of the principle of love in particular situations. The meaning of the principle of love is clarified through drawing on the traditions of Christian ethics. Love is understood as a care for another, as a genuine willingness to do good to others for the sake of the others. The method requires that the judges apply legal rules in a flexible way after reaching as deep an understanding as possible of the motives and moral views of the parties to the process, and after examining themselves with the purpose of neutralising moral prejudices and biases. Based on this method, the practices of impartial sympathy judgement and watchfulness are considered paramount in order for the principle of neighbourly love to operate effectively in the process of judicial decision making.
The practical character of agapic casuistry is illustrated by examples of judicial decisions in four different courts: the House of Lords, the Scottish High Court of Justiciary, the Russian Constitutional Court, and the European Court of Human Rights. Four different aspects of judicial decision-making are taken in order to demonstrate that the judges can and do love their neighbours actively.
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