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2. Thomas Aquinas on Conscience. 33 3 Shytov, Alexander Nikolaevich (2000) Conscience in making judicial decisions. PhD thesis. http://theses.gla.ac.uk/2920/ Copyright and moral rights for this thesis are retained by the author A copy can be downloaded for personal non-commercial research or study, without prior permission or charge This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the Author The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the Author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given Glasgow Theses Service http://theses.gla.ac.uk/ [email protected] CONSCIENCE IN MAKING JUDICIAL DECISIONS ALEXANDER NIKOLAEVICH SHYTOV THESIS SUBMITTED TO THE UNIVERSITY OF GLASGOW FOR THE DEGREE OF DOCTOR OF PHILOSOPHY IN LAW FACULTY OF LAW AND FINANCIAL STUDIES. UNIVERSITY OF GLASGOW. JUNE 2000. II ABSTRACT OF THE THESIS. 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 practice 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 Hoii$.epf~~~r~s, the Scottish High Court of .. ~~ ~ .... ~~:;:~.~( :'" ~ t; 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 III even under the legal constraints on their activities. Defining the scope of the right to a hearing, judicial activism in punishing criminal behaviour without the explicit sanction of the positive law, constitutional control over legal rules and interpretation of human rights are all considered through the perspective of agapic casuistry. In all those aspects, the judge's act of love is manifested in their sympathy towards the parties. Sympathy based on agapic love is impartial, and it transforms not only the lives of the individuals but the whole institutions and practices. Although sympathy judgement is not the only type of moral judgement in judicial decision-making, it is not uncommon. The ultimate goal of this thesis is, however, not only to understand the common practices of the courts, but to show that love can transform the present and future decision-makers who still do not know the power of love. IV ACKNOWLEDGEMENTS. I would like to thank my superviser Professor Prosser for excellent supervision, help and patience during my studies in the University of Glasgow. I am also thankful to Dr Tasioulas who supervised me together with Professor Prosser during my first year. I am particularly grateful to him for helping me to understand better Aquinas's theory. I want to thank the members of the staff of Law faculty of Glasgow University, especially to Professor Murdoch, Professor Farmer and Dr Veitch, who expressed their interest in my subject and gave me advice or pointed to some important writings. I am grateful to my former tutors, Michael Keeling and Timothy Gorringe, in the University of St Andrews for encouragement to bring theological materials into legal studies, and also to Professor Bankowski for drawing my attention to the problem of the generality and particularity in law. I also would like to thank David Harvey, an elder of the West Glasgow New Church, for reading my thesis and giving many useful recommendations. I am grateful to Fr Alexander from Dunblane Russian Orthodox Church for drawing my attention to the Orthodox concept of watchfulness and its importance for judicial decision-making. I am grateful to Lord Richard, the Bishop of London for helping me to shape my ideas on relevance of Christian love to law, and for his prayer support. I am very grateful to the University of Glasgow and St Andrew's Trust for giving me financial means to carry out and complete my research. IV v TABLE OF CASES Scottish cases Bernard Greenhuff. [1838]. 2. Swin. 236. 213-217. Dewnar [1777] 219 Donoghue v. Stevenson [1932] A.e. 562. 4, 110,122, 123 Grant v. Allan. [1988] SLT. II. 218,219 HM. v. John Ballantyne. - [1859] 3 Irv. 352. 217 HM. v. Mackenzies. - [1913] 7 Adam. 189. 219 Khalid v. HM. Advocate. [1984] SLT 137. 221 McLaughlan v. Boyd. [1934] J.e. 19. Stallord v. HM. Advocate. [1989] SLT 469. 222-225 Strathern v. Seaforth. [1926] J.C. 100. 209,221 English cases The Aello. [1961] A.C. 135. 153 AI-Mehdavi v. Secretary of State for the Home Department. [1989] 3 All E.R.(HL) 843. 175,176 Bagg's Case (1615) 11 Co. Rep. 93b. 186 Cooperv. Wandsworth Board of Works. (1863) 14 e.B.N.S. 180. 196 Donoghue v. Stevenson [1932] A.e. 562. 4, 110, 122, 123 Errington v. Minister of Health. [1935] 1KB. 249. 195 Frost v. Minister of Health. [1935] 1KB. 286. 195 Hopkins v. Smethwick Local Board of Health. (1890) 24 Q.B.D. 713. 196 In Re United Railways of Havana and RegIa Warehouses Ltd. [1961] A.C.1007. 154 Knuller v. Director of Public Prosecution. [1973] A.e. 435. 208 Leonis Steamship Co. Ltd. v. Rank Ltd. [1908] 1 KB. 499. 154 Locabail (UK) Ltd. v. Bayfield Properties Ltd. [2000] 1 All E.R. 65. 165,166 Miliangos v. George Frank. [1976] A.C. 443. 154 Nakkuda Ali v. Jayarante. [1951] A.C. 66. 191,195 Offer v. Minister of Health. [1936] 1 KB. 40. Oldendorffv. Tradax Export. [1974] A.C. 479. 153,154 R. v. Bow Street Metropolitan Stipendiary Magistrate and Others. ex parte Pinochet Ugarte (No 2). - [1999] 1 All E.R. 577. 165,166,177 R. v. Diggenes, ex p Pahmani. [1985] 1 All E.R. 1073. 175 R. v. Gough. [1993]. A.C. 646. 165 R. v. Metropolitan Police Commissioner, ex p. Parker. [1953] 1 W.L.R. 1150. 195 R. v. R. [1992] A.C. 599. (HL). 227 Ridge v. Baldwin. [1964] Ae. 42. 5,186-205 Serjeant v. Dale. [1877] 2 Q.B.D. 558. 177 Shaw v. Director of Public Prosecutions. [1962] A.C. 220. 208 Tinsley v. Milligan. [1994] A.C. 340. 157 VI USA cases Brown v. Board of Education. 347. US. 483. (1954). 145,146 Public Utility Commission v. Pollak. 343. US. 451. (1952). 167,176 Plessy v. Ferguson. 163 US. 537. (1896). 146,155 Riggs v. Palmer. 115 N.Y. 506,22 N.E.. 188 (1889). 54 Shapiro v. Thompson. - 392 U.S. 920. (1968). 145 European Human Rights cases Balmer - Schafroth v. Switzerland. - Judgement of 26 Aug. 1997. - HRLJ. - 18. (1997) 196; 25 E.H.H.R. 598. 260,268 Botten v. Norway. - Judgement of 19 Feb. 1996. - European Court of Human Rights. RID 1996-I. 262,261 Boughanemi v. France. - Judgement of 24 April 1996. - European Court of Human Rights. RJD 1996-II; 22 E.H.R.R. 228. 256 Brannigan and McBride v. UK. - Judgement of 26 May 1993. - European Court of Human Rights. Series A, No. 258-B; (1994) 17 E.H.R.R. 539. 254,269 Cossey v. UK. - Judgement of 27 Sept. 1990, Series A. No 184; 1991] 13 E.H.R.R. 622. 257 Doorson v. The Netherlands. - Judgement of 26 March 1996. - European Court of Human Rights. RID 1996-II; 22 E.H.R.R. 330. 268 Gay News Ltd. and Lemon v. UK. - Decision of 13 May 1982. - European Commission of Human Rights. - App. No 7889177. [1983].5 E.H.R.R.
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