Judicial Objectivity: (Dia-Logos)

The book poses the fundamental question of what objectivity means in practical legal discourse and what is its role. By applying critical discourse analysis to the applications of the term “objectivity” in judicial discourse – based on cases from Poland – the book identifies a rich taxonomy of objectivity’s uses that judges make of the concept of objectivity. The main results are that objectivity has a special meaning in the legal discourse based on legal authority, and that a case can be made for a stronger interconnection between objectivity and intersubjectivity. These results challenge the theoretical foundations of the debate on objectivity in the legal discourse and open new perspectives for the justification of this concept in modern societies. Cover Copyright information Contents Introductory Remarks Chapter I The Conceptions of Objectivity 1.1. The Realism Versus Antirealism Debate 1.2. The Typology of Objectivity with Regard to the Object 1.2.1. Persons Recognized as Objective 1.2.2. Objectivity of Different Types of Statements 1.2.3. Objectivity with Respect to Knowledge 1.2.4. Elements of Empirical Reality: Objectivity of the External World and the Ontology of Brute and Institutional Facts 1.3. The Explanation of Objectivity with Regard to the Subject’s Determination 1.3.1. Overcoming the Subjective Perspective43 1.3.2. Rejecting the Influences of Individual Elements 1.3.3. Esse Obiectivum 1.3.4. Forms of Expressing the Essence 1.3.5. The Dichotomy Given to the Subject 1.4. The Explanation of Objectivity with Regard to Intersubjectivity 1.4.1. Intersubjectivity and Communicative Context 1.4.1.1. Wittgenstein’s Argument 1.4.1.2. ‘Thought Communities’ 1.4.1.3. Intersubjectivity as Agreement/Disagreement 1.4.1.4. The Emphatic Communication 1.4.2. Epistemological Intersubjectivity as a Condition for Knowledge Creation 1.4.3. Proximity of Objectivity and Intersubjectivity 1.4.4. Separation of Objectivity and Truth 1.4.5. Conclusions 1.5. The Characterization of Objectivity Due to Its Different Extent/Gradation 1.6. Objectivity and Truth/Correctness/Validity 1.6.1. Objectivity as not Equal to Truth 1.6.2. Objectivity Versus Correctness and Validity 1.7. Universality Chapter II Objectivity in Law Versus Objectivity of Law 2.1. Is Objectivity Fit for Law? 2.2. The Objectivity of Law 2.3. Objectivity in Law 2.3.1. Metaphysical Objectivity of Law and in Law 2.3.1.1. M. Kramer’s Conception 2.3.1.1.1. Mind –Independence 2.3.1.1.2. Determined Correctness 2.3.1.1.3. Uniform Applicability 2.3.1.2. J. Coleman’s and B. Leiter’s Conception 2.3.1.2.1. The Strong Objectivity 2.3.1.2.2. The Minimal Objectivity 2.3.1.2.3. The Modest Objectivity 2.3.1.3. Summary 2.3.2. Epistemological Objectivity of Law 2.3.2.1. Methodological Conception of Legal Objectivity by G. Postema 2.3.3. Semantic Objectivity of Law 2.3.3.1. Kripke-Putnam Semantic Theory Chapter III Analysis of the Jurisprudence of the Court Rulings 3.1. Introduction 3.1.1. Basic Meanings and Families of Meanings 3.2. Methodology: the Discourse Analysis 3.2.1. Critical Discourse Analysis 3.3. From the Analysis of the Jurisprudence of the Court to Classification of the Meanings of Objectivity 3.3.1. The Subject-Determined Camp of Objectivity (A) 3.3.2. The Object-Determined Camp of Objectivity (B) 3.3.3. The Intersubjective-Determined Camp of Objectivity (C) Chapter IV Objective Judgments and General Clauses 4.1. The Notion of General Clauses in the Context of Judicial Discretion 4.2. Some Examples from Justifications of Legal Decisions 4.2.1. General Clauses and the Objective Point of View 4.3. General Clause as Individual Measures 4.4. Models and Patterns of Behaviour as an Objectification Process 4.5. The Concept of ‘Reasonable Person’ 4.5.1. Reasonable Person in International Law 4.5.2. The Polish Example 4.5.3. English, German, and French Examples 4.5.4. Common Law Tradition 4.5.5. The Notions of Objectivity in Interpretation of Contracts: a Summary 4.5.6. Reasonable Person or Reasonable Man? 4.6. The Observed Aim of ‘Objective’ General Clauses 4.7. From the Judges’ Point of View Chapter V Objectivity of Legal Facts 5.1. The Definitions and Various Types of Legal Facts 5.1.1. Facts Determined Descriptively 5.1.2. Facts Determined by Evaluation 5.2. Objective Legal Facts according to the Polish Judicature 5.2.1. Facts Extracted by Description 5.2.2. Facts Extracted by Evaluation 5.3 Narrative and Normative Coherence of Law 5.4. The Relation between Brute and Institutional Facts 5.5. The Relation between Facts and the Paradigm of Interpretation 5.6. Objectivity of Legal Facts: Semantic Reflections 5.6.1. Meaning 5.6.2. Wittgenstein and Kripke 5.6.3. Kripke’s Sceptical Position 5.6.3.1. Kripke’s Non-Sceptical Interpretation of Wittgenstein 5.7. Objectivity of Legal Facts 5.7.1. Legal Definitions 5.7.2. The Semantic Theory of Kripke and Putnam Chapter VI Conclusions 6.1. The Ceremonial Function of Legal Objectivity 6.1.1. The Analysis of the Style of Objectivity as Performing the Ceremonial Function 6.2. The Relationship Between Objectivity and Subjectivity 6.3. Does Intersubjectivity Fit the Law? Bibliography Name Index Series index The book discusses how "objectivity" is used in the judicial discourse. Through critical discourse analysis of Polish jurisprudence, the book presents a taxonomy of the objectivity’s uses by judges, highlighting that objectivity has a special meaning in the legal discourse based on legal authority.