The motivating part of the judgment in the countries...

Motivation part of the judgment in Common Law countries

Unlike civil procedural codes operating in countries of continental law (for example, Article 455 of the French CPC, § 313 of the GPC of Germany), English statutes and acts of delegated legislation do not impose on the courts the duty to motivate conclusions, i.e. it is formally enough only a resolution order on the proper actions of subjects of a disputable legal relationship without its justification.

The English judgment, strictly speaking, boils down to a simple statement of the decision taken on the dispute: "X must pay such a sum of Y, the contract concluded between X and Y is terminated ..." English judges order and should not justify their orders.

Such a brevity of the statement of the court decision is typical for the production of so-called small claims or for simplified production. As for judgments in cases considered in the ordinary contestative process, they, on the contrary, contain a detailed, detailed motivation for the court's decision. It is about such acts and will be discussed next.

Motivation includes the analysis and evaluation of evidence, the establishment of facts, selection, interpretation and application of substantive rules for determining the subjective competencies and responsibilities of the parties to the conflict. There are questions about who, when and for what purpose it is desirable to have a judicial act containing these elements.

Motivation makes it possible to assess the actions of the court on the part of English society. As already noted in relation to United States justice, wrong decisions, like those that are poorly motivated, reduce the trust placed in courts and individual judges. This is also true of justice in other countries, including English. The decision-making process that combines both the judging of discretion with respect to the result and its justification is the very essence of the judge's profession and, in the opinion of foreign researchers, is the most important area in the work to improve the quality of the judiciary.

In addition, knowledge of the judge's arguments is important for those who intend to appeal the decision and achieve its cancellation or change. In this case, the arguments have any character, i.e. concerning evidence, facts and legal qualifications. In the case of English legal proceedings, two features should be pointed out. First, the Court of Appeal, and even more so the Supreme Court of the United Kingdom of Great Britain, sees its appointment primarily in the leadership of the entire judicial system, which is carried out by means of instructions on the application of legislation and the creation of precedent standards. Therefore, these courts do not consider it appropriate to spend time analyzing the actual relationships of the parties that have already been established by the court of first instance. Secondly, given the considerable freedom of judicial discretion in English justice, the rules for drafting an English judicial decision do not require that the motivation of the judge be fully spelled out in the text of the decision. Motives for the adoption of a decision by an English judge can be understood in this case when reading the written notes that the judge made personally for himself during the meeting. Such records can be attached to the materials of the appeal proceedings.

It is interesting that, as a rule, the Supreme Court of Great Britain listens to appeals on Mondays from 11.00 to 13.00 and from 14.00 to 16.00, and from Tuesday to Thursday - from 10.30 to 13.00 and from 14.00 to 16.00. It's easy to see that although Friday is a working day in the UK, court hearings on this day are never held. This is explained by the fact that the best moment for writing a decision is considered to be the day following the last day of hearings, when, on the one hand, the arguments of the parties are still fresh in the memory of the judicial staff, and on the other, there is no need to run for the next meeting.

The credibility of the decision depends to a certain extent on how skillfully and logically the elements of its reasoning are combined, including the facts recognized by the established facts, the applicable norms and conclusions about the legal relationships of the parties. Analyzing the jurisprudence of England and other states, Western theorists discern several models of the interrelationships between these elements. Depending on the choice of the option depends on the sequence of the location of the material, the volume and even the style of the presentation of the solution. In the administration of justice, the following types of models are mainly used: deduction (from the general thesis to the peculiarities of this case), induction (achievement of a general rule based on concrete facts), analogy (appeal to an episode similar to the one under consideration), statistical syllogism (general reference to the established practice in similar cases), bringing to the point of absurdity (excluding one of the possible alternative conclusions by revealing its internal inconsistency) and some others. These methods of reasoning are peculiar not only to English judges, and they can be distinguished from the decision of any state.

In English law there are no indications obliging the judge to make a decision on any one of the possible logical schemes. This is quite natural, since the choice depends on various factors, including not least the discretion of specific judges in specific cases.

English judges demonstrate a wide variety of techniques. And yet the induction due to the precedent character of English law prevails. At the same time, the English judicial decision may look like a free story, not devoid of artistic merit. Examples are easily found in published court reports or scientific commentaries. So, in the English decision, we can read that "old Peter Bezvik was a coal merchant." All he had was a truck, measuring devices and scales. " In the case of compensation for personal injury, the judge describes figuratively that three young people used alcohol in the evening; the next day they robbed him and, in an effort to quickly disappear from the crime scene by car and violated traffic rules, crashed into the fence. As a result, one of the friends, who received serious injuries, presented to the other two claims for compensation for damage. The statement of the circumstances of the case can be quite stretched, because the judge takes care that everything is clear. In the issues of judicial practice, there are decisions within which facts are grouped and each group receives a corresponding heading.

In analogy, the things to be compared are inherently heterogeneous, for example, the transport of goods and passengers, and therefore the analogy is capable in a concrete case of giving a judge a certain idea or supporting a weak point with arguments, but does not mean the spread of the norm for the movement of people created to regulate the transportation of goods.

The method of reducing to absurd (reductio ad absurdum ) is considered quite typical for English practice. With the help of logical symbols, it looks like this: we can come to either A or B; if A is chosen, then Corollary C arises; but C is incompatible with the absolutely indisputable position of D; therefore, there is a correct conclusion. There are also real deeds that allow us to fill an abstract concept with concrete content. For example, the question arose whether the owner of a land plot was entitled to sue on the basis of a treaty concluded by its predecessor, i.e. the former owner of real estate. The judge reflected this: the prohibition to initiate such a process would give the counterparty the opportunity to ignore and violate the treaty with impunity, which is inadmissible under English law.

Finally, the statistical syllogism is a technique widely used in the US and rarely observed in England. The judge in a general form refers to the practice that has been adopted on this issue, which he intends to follow in the case under consideration. There are moments of rapprochement with the analogy, but unlike it, the emphasis is not on one-order features of diverse phenomena, but on a significant, if not complete, identity of situations belonging to the same class. Syllogism in the end is stronger than analogy, when resolving the relevant issues, it is not an additional argument, but the main argument.

The US inherited the English common law system, which means that there are obvious similarities between the writing of British and American decisions. Nevertheless, there are differences between them. So, to the United States researcher the decisions made in England or the USA, can seem too long, sated with unnecessary details. Conversely, English and American practitioners and scientists are likely to find the decisions of United States courts too brief and formal. What is behind these words? What is the difference between Anglo-American and United States decisions, and what are the reasons for this difference?

American lawyers, for example, highlight at least three main reasons why American solutions, despite the fact that they perform the same functions, look different. First, court decisions act as precedents, which has a great influence on their writing. Secondly, they are designed for a wide audience, which affects the style of their presentation. Thirdly, the judge has a considerable degree of freedom in choosing the style and manner of presentation, since in the US there are no special laws or rules on how to write judicial decisions.

Since the requirements for the form and content of the decision are not regulated by the rules of cases and codes, the form of judicial decisions varies from court to court and even from judge to judge and largely reflects the individual styles of presentation. At the same time, the solutions are quite similar to each other, since they reproduce the best of their samples in order to logically convince everyone that the solution is correct.

The decisions of the Supreme Court of the United States, as well as the decisions of courts of appellate instances operating in the United States, constitute one of the main sources of law, which should be guided by both lower courts and the court itself, which made the decision, which became a precedent. Such a decision usually contains lengthy quotations from earlier decisions that are binding on the case before the court. The decision may indicate cases cited by the parties, but which the court does not consider binding. There may be references to solutions, which, while not mandatory precedents, contain convincing and useful arguments. The scope of the decision is also influenced by the dualism of the judicial system, and even if the decision taken in another state is not necessary, it can be cited for the judge's credibility in the established practice of dealing with cases in another state.

Written decisions are of interest, first, for the parties, secondly, for judges and other lawyers, and thirdly, for the general public, which affects the decision. According to American lawyers, most of the appeals decisions in the US are written mainly in terms of the second and third groups. For example, if the decision concerns the legality of police actions, then it should be clear not only to judges, prosecutors and lawyers, but also to policemen who may have limited knowledge of law. Solutions designed for different groups of people tend to be more voluminous and require more time for writing. Let's take as an example the decisions of the Supreme Court of the United States, which are written for the widest audience, are analyzed in detail by lawyers and covered in detail in the media.

What are the conclusions that follow from the above provisions regarding the models taken by the English judges in drafting motivations for decisions? All methods are intended to ensure the persuasiveness of the arguments, and therefore, the final results of the acts of the organs of justice. When choosing the most convenient form of argumentation, it is decisive to observe the logic of the judge's reasoning. It should be noted that in published collections of analysis of the practice of evidence on individual cases, or not at all, or it occupies a very small place. The statement begins with a listing of the actual circumstances that are established with the help of evidence. Their assessment often occurs in the minds of judges, remaining behind the scenes, without finding an external fixation.

The United States doctrine does not usually identify or analyze the methods used by judges in making a decision, but this does not mean that United States judges are free from their use. Of course, due to the established traditions of writing a solution to any one method, preference can be given.

But irrespective of the method of argumentation, the location of the elements of the solution, its vocabulary and the style of presentation, the model scheme inherent in any justice system becomes gradually the dominant factor: the material and legal norms that are applied constitute a large premise of the syllogism, the facts of the case are small, the conclusion is the operative part of the decision . Despite the fact that parts of the solution can be interchanged or intertwined with each other, the general scheme must be observed.

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