Search Results

Having argued, in Ch. 2, that there are universal moral values, the next logical step is to ask what these universal moral values are; this question is pursued in Chs 3 and 4, which consider arguments for two different types of universal value and link together to provide an analysis of what universal principles of justice should apply at the global level. This chapter examines claims that there are universal principles of civil and political justice, that is, those principles that specify what rights people have to what freedoms, and argues for universal human rights to certain civil and political liberties. It is arranged in 13 sections: Section I presents an analysis of human rights, since this term plays a central and important role in a plausible account of civil and political justice; Section II puts forward a general thesis about justifications for civil and political human rights; this is followed, in Sections III–VII, by an analysis of four cosmopolitan arguments for human rights that criticizes three of them but defends the fourth; Section VIII considers an alternative non-cosmopolitan approach to defending civil and political human rights, presented by John Rawls in The Law of Peoples (1999b); the next three sections (IX–XI) of the chapter explore misgivings about civil and political human rights, including the objections that such human rights are a species of imperialism and do not accord sufficient respect to cultural practices (IX), produce homogeneity/uniformity (X), and generate egoism/individualism and destroy community (XI); Section XII considers a further objection—the realist charges that foreign policy to protect civil and political human rights is in practice selective and partial and a cloak for the pursuit of the national interest. Section XIII summarizes the overall case made for civil and political justice.

Describes the aims, approaches, and structure of the book. The basic issue addressed is the political principles that should govern global politics, and to analyse this the book posits six sets of questions, each of which is addressed in separate chapters that separately examine (moral) universalism, civil and political justice, distributive justice, political structures, just war, and humanitarian intervention. The author makes four points: that his concern is with political philosophy; that he refers to global rather than international political theory; that he examines global political theory rather than global ethics; and that he distinguishes three levels at which global political theory may operate—its relation to domestic political theory, the principles and institutions involved, and the application of these principles to specific issues. He also identifies the aims of the book, which are: to provide a defence of what is commonly termed a cosmopolitan political morality; to explore in depth and evaluate competing philosophical perspectives on these issues; and to emphasize that the topics examined in the book are very closely intertwined and cannot be engaged satisfactorily in isolation from one another. The four competing approaches that may be taken to global political theory (cosmopolitanism, realism, the ‘society of states’, and nationalism) are outlined in turn in order to provide a framework within which the six questions posited in the book are examined, and to stake out and defend the cosmopolitan approach taken.

Chapter Abstract: Problems in the criminal justice system response to date-acquaintance rape and misdemeanor sex crimes include (a) they are erroneously viewed as minor; (b) perpetrators are not held accountable undermining deterrence; and (c) standard criminal justice practice traumatizes victims. RESTORE, a restorative justice-based alternative to civil and criminal process has been implemented in Pima County, Arizona USA. The program is described including step-by-step review of process from referral to completion. Jurisprudence critiques of applying restorative justice to sexual assault are examined. RESTORE adapted numerous alterations of standard conferencing practice to respond to concerns and create a victim-driven program. Conclusions appeal to advocates and policymakers to re-envision and enlarge the means to justice available for sex crimes.

All systems of procedure seek to do justice. Different systems of procedure employ different methods for achieving this goal. Whether the differences between systems are small or great, a comparison is inevitably called for. We look at each other in order to measure ourselves. But like any other form of assessment, this too requires some parameters, some common denominator by which we can measure and compare. This chapter develops such a set of parameters. It argues that justice has three dimensions by which it is measured. Unfortunately, these three dimensions are not entirely complementary. At times they pull in different directions and call for compromises. Compromise, therefore, is an inescapable feature of any system of justice. Once this conceptual framework has been set out, the chapter turns to individual procedures. The purpose of the analysis is to draw attention to how different systems of procedure seek to achieve the goals of justice and what compromises or sacrifices are made in the attempt to do so. This last point is perhaps the most instructive aspect of a comparison of systems, for it draws attention to the fact that what lies behind different methods of doing justice is really a difference in priorities. It is the priority given to this or that objective of justice which shapes the procedures with which we end up.

This chapter describes how liability insurance has contributed to the transparency of the civil justice system. It makes three main points. First, much of what we know about the empirics of the civil justice system comes from access to liability insurance data and personnel. Second, as long as access to liability insurance data and personnel depends on the discretion of liability insurance organizations, this knowledge will be incomplete and, most likely, biased in favor of the public policy agenda of the organizations providing discretionary access to the data. Third, although mandatory disclosure of liability insurance data would improve transparency, a reasonably complete understanding of the empirics of the civil justice system also requires mandatory disclosure of the payments and defense expenditures that are not covered by alternative risk transfer arrangements. The first part of the chapter describes existing approaches to transparency through liability insurance in the United States. The second part analyzes the role of liability insurance in promoting transparency in several discrete civil justice arenas—auto, medical, and products liability—and, for comparison purposes, workers' compensation. The concluding section addresses objectives to expanding mandatory claims reporting and links the discussion in this chapter to the literature on the relationship between liability and insurance more generally.

This chapter describes the implications of the Lord Woolf reforms for settlements, a less adversarial culture and the cost of litigation. In particular, it draws on the social research to explore civil procedure in England and Wales, mainly the big bang brought about by the Woolf reforms. In addition to what has been described as managerial judging or court control, some other broad themes of the procedural change such as facilitating settlement are described, dealing with cases proportionately and encouraging alternative dispute resolution. It starts by outlining the procedural changes themselves. The movement for greater court control runs in parallel with that to facilitate more settlements. It is proposed that one must know more of the operation of the civil justice system in England and Wales if he/she will pursue avenues for its future operation which accord with existing principles and achieve values such as equality before the law and more effective access to justice.

This chapter begins with a description of the Portuguese system of civil procedure. It then discusses the problems of civil justice, reforms in the civil jurisdiction, and alternative modes of dispute resolution.

For many years, French justice, like all other systems, has faced the dramatic consequences of the exploding volume of litigation. The long delays and high costs which this explosion causes are, to a certain extent, the counterpart of democratized access to law and justice. Although several reforms have been initiated, one should not forget that the current difficulties originate largely from the fact that the resources of the justice system have not risen proportionately to the sharp increase in the volume of litigation with which courts have been faced. The solution to the crisis is essentially financial. This chapter begins with a description of the French system of civil procedure. It then presents an outline for procedure. This is followed by discussions of the main problems encountered in the administration of civil justice, historical perspective of reform, alternative modes of dispute resolution, and the present state of affairs.

While criminal justice emphasizes the role of law as an instrument of control, the study of civil justice presents an alternative view of the law as a resource. The criminal branch of the Giustizia Vecchia enforced market rules in partnership with the guilds, but parallel to this was a civil branch that considered private disputes. This chapter examines how far this civil justice was accessible to ordinary people. In particular, it asks whether the Giustizia Vecchia can be defined as a court of equity or as a court of law, and analyses the practical consequences of this for ordinary people. The vast majority of lawsuits fall into the category of small claims, defined in Venice as those worth up to 50 ducats. It was to keep legal costs down as far as possible, even if this meant accepting lower standards of justice.

This chapter begins with a description of the characteristics of Spanish civil procedure. It then discusses the Spanish hierarchy of the courts, sources of civil procedural law, the basic Spanish procedure, the Spanish legal profession, appeal procedure, the nature of civil litigation in Spain, principal problems of civil justice, legal aid, and alternative modes of dispute resolution, and the Civil Procedure Bill (1997).

The number and diversity of the recently enacted laws have resulted in confusion about the state of German civil procedure today. This chapter gives an overview of the most important changes. It focuses on reform that has changed the system of German civil justice in a more fundamental and far-reaching way: The Law on the Reform of Civil Procedure of July 27, 2001. In doing so, it accounts for the changes that have been made to the Code of Civil Procedure more recently through the Law on the Modernization of Justice of July 1, 2004, and the Law on the Remedies for Violations of the Right to be Heard of 2004 of December 9, 2004.

The present system of dispute resolution in Australia cannot cope with the increase in the number and classes of litigants and in the complexity of litigation. The system is too labour intensive for that. And because it is too labour intensive it is too costly; in most cases in the system the costs of those that go to trial are disproportionate to the amount or value in dispute and, for the losing party of average means, they may be ruinous. Reducing the cost of dispute resolution must therefore be the primary objective of civil justice reform. This chapter discusses the main defects in the existing civil justice system and how they are being or should be remedied. It begins by describing the existing system and its history. It is argued that the starting point of civil justice reform in Australia must be the acceptance by lawyers and judges of a new concept of just dispute resolution; one which involves greater frankness between disputants, which is less adversarial, and which accepts that costs, the rights of others, and the public interest are relevant considerations. It is only if this is accepted that a system will evolve which resolves disputes without undue delay, at a reasonable cost, and with little or no diminution in the quality of result.

Courts step in when private ordering breaks down. Litigation strategies maximise the parties' utilities, but ignore negative externalities. There is a growing awareness that it is sub-optimal to handle conflict by trial. Courts embrace alternative dispute resolution as a mechanism for reducing the judiciary's workload and addressing the challenge of budget cuts. Dispute settlement by self-determination is a private ordering exercise to be preferred over cost-intensive procedures for trials and judicial precedent. This study assesses the economic and constitutional implications of privatising the day in court. Reference is made to US laws (including the Uniform Mediation Act) and to German and European laws (the EU Mediation Directive). Privatisation appears to be the regulatory policy prescription for averting tragedies of the common; but in turn, privatised dispute settlement may also provoke problems of the anti-commons of its own. More attention should be devoted to the private and social costs of a mediation settlement.

This chapter investigates options and tensions in the implementation of transparency policy through a case study of the September 11th Victim Compensation Fund (VCF), a federally funded administrative compensation system for the victims of the 9/11 attacks. The VCF offers a useful example of how information disclosed by a compensation program may be intended both to promote the program's democratic legitimacy through accountability—transparency's usual justification in the context of public programs—and also to encourage participation in the program. The chapter begins by discussing key concepts in transparency theory, such as the relationship between transparency and accountability. Next it describes the circumstances that forged the VCF, the nature and extent of the program's disclosure of information, and the purposes these disclosures served. It concludes by drawing implications of this case study for other government programs and for the civil justice system.

Focusing on the matters of pleading and discovery, this chapter proposes to invigorate the proportionality principle; that is, the discovery costs should be proportional to the amount in controversy. It begins with a discussion of the normative vision of the goals that civil dispute resolution should aspire. The extent to which the civil justice system achieves or fails to achieve these goals is explored. The chapter also examines some of the current proposals for civil justice reform and their weaknesses.

The conclusion of the book wraps up by reiterating overarching themes. It observes again that the influential critique of the civil litigation system, while not compelling, rightly emphasizes the costs of litigation. It explains that because the litigation systems sees at once too few cases and too much litigation, it should be rendered both more accommodating to those who lack access and less costly for those who have it. That combination would advance the aspirations of civil justice. The conclusion also notes that improving the civil litigation system, in the ways such as those proposed in this book, is most likely to result from decentralized reform through localized experimentation.