Rationality in Decision Making In Law Nisigandha Bhuyan, IIMC

Rationality A set procedure of systematic analysis that supports the decision. Reason is the source of knowledge Reason is the power of mind that could filter out clarity and relevance from contamination and irrelevance – Enlightenment view Nisigandha Bhuyan, IIMC

Rationality Economics – reason - benefits outweigh costs Psychology – reason – superior to emotion – Objective and unbiased Philosophy – reason – superior source of knowledge – Innate/ apriori (prior to experience) – as opposed to aposteriori (outcome of sensory perception/experience) Nisigandha Bhuyan, IIMC

Conceptions of Rationality in Law Pure logic Logic + Social experience Is law a rule based reasoning/prescriptions? (Can every component of the decision be explained through the rule? If not) Then, how to explain tacit bases of judicial preferences that influence decision? In essence - does rationality (alone) fail to guarantee legitimacy? Nisigandha Bhuyan, IIMC

Rule of Law Legitimacy of legal institutions is due to – rule of law – Society ruled by law, order and justice – Concept of no one is above law – One sense: legitimizes the existence of state and sovereignty of the state over citizens It is a means to control the arbitrary power of citizens – Another sense: more fair, balanced, and truth centered – Yet another: judicial enforcement of legal rights and duties Nisigandha Bhuyan, IIMC

Applying reason to law The enlightenment view of reason has strong appeal to decision making process in general – Just, objective, fair, and rational resolution of dispute – Rational law is both necessary and sufficient condition for political legitimacy – it guarantees good governance – Legal rules are a check against and antidote to arbitrary power – Legal rules are capable of filtering out the legally relevant from the legally irrelevant Nisigandha Bhuyan, IIMC

Applying reason to law Legal reasoning must yield clear, predictable, consistent – objective legal standards Nisigandha Bhuyan, IIMC

Limitations of legal rationality Legal rules may fail to achieve objective outcomes Especially in politically and socially contentious cases Cases that require extra legal considerations Nisigandha Bhuyan, IIMC

Justice as Fairness: John Rawls Emphasis is on SOCIAL INSTUTITONS within which actions and policies are determined Though focused on social/ distributive justice has the potential to guide the decision in legal/retributive justice Nisigandha Bhuyan, IIM Calcutta

Justice as Fairness: John Rawls Definition and Principles Justice is: – A virtue of social institutions, measured by fairness in allocating benefits and burdens, defined by two basic principles: – Liberty – Difference Nisigandha Bhuyan, IIM Calcutta

Justice as Fairness: John Rawls Liberty Rawls’ “Liberty Principle” “Each person participating in a practice (or affected by it) has an equal right to the most extensive liberty compatible with a like liberty for all.” Examples – Guarantees the ‘due process’ – Right to fair trial Nisigandha Bhuyan, IIM Calcutta

Justice as Fairness: John Rawls Difference Rawls’ “Difference Principle” Inequalities are arbitrary unless It is reasonable to expect that they will work to the advantage of the least advantaged; and The positions and offices to which they attach (or from which they may be gained) are open to all, under conditions of fair competition Nisigandha Bhuyan, IIM Calcutta

Justice as Fairness: John Rawls Least Advantaged Who are the “least advantaged”? Those with lowest expectations for/ access to “primary goods” = “what free and equal persons need as citizens” Examples – Subject to arbitrary conditions – Lack the necessary means available in a free society Nisigandha Bhuyan, IIM Calcutta

Justice as Fairness: John Rawls Basic Goods Rawls specifies five kinds of such goods: 1.Basic rights and liberties (life, liberty, property, freedom of thought, liberty of conscience) 2.Freedom of movement, free choice of occupation 3.Powers and prerogatives of offices & positions of responsibility 4.Income and wealth Nisigandha Bhuyan, IIM Calcutta

Justice as Fairness: John Rawls Basic Goods Rawls specifies five kinds of such goods: 5.Social bases for self-respect – “aspects of basic institutions normally essential if citizens are to have a lively sense of their worth as persons & advance their ends with self-confidence”. Those who lack access these goods are “least advantaged” Nisigandha Bhuyan, IIM Calcutta

Justifying Rawls’ Claims The “original position”: assume a group of – Rational, self-interested individuals – Who know that there will be competition for scarce resources; – But do not know what natural advantages or disadvantages they will possess, or – What value beliefs or preferences will guide them Nisigandha Bhuyan, IIM Calcutta

Justice as Fairness: John Rawls Given these assumptions what principles would these rational, self-interested individuals choose to guide distribution of benefits and burdens in their society? Rawls claims that persons in this imaginary “original position” would adopt versions of the liberty and difference principles. Nisigandha Bhuyan, IIM Calcutta