CEU Electronic Theses and Dissertations, 2013
| Author | Torma, Judit |
|---|---|
| Title | HOW JUDGES DECIDE? Objectivity of Judicial Decisions in Mental Disability Cases in Hungary and the United Kingdom |
| Summary | Evolution of prejudices and the development of social norms are not independent from legal practice and legal change. Also the mind of a judge is not capable of processing data completely neutrally. A judge’s decision will similarly be subject to his/her background, in-group stereotypes and unconscious attitudes, as of any other human being. Accordingly, stable stereotypes exist in judicial decisions and legal treatment of persons living with mental disability. In their cases prejudice conscious attitudes of judges and legislators would result more prudent decisions, a life with more dignity and more inclusive attitude of society. Mental disability law tends to be a specific part of law in almost every jurisdiction where strong traditional prejudices against persons with mental or intellectual disability are still present. One of the legal areas of mental disability law is related to legal capacity decisions which are applied for a protective purpose and in the ‘best interest’ of the individual. This justification, is not only paternalistic and reflects a ‘sanist’ attitude of legal systems, but does not take into consideration broader human rights aspects and the underlying philosophy of international covenants. In legal systems descending from Roman law traditions a form of total legal deprivation exists in the form of ‘guardianship’. Although the consequences of such deprivation are almost definite for the individual and raises serious human rights issues, judges dealing with guardianship cases rarely use their discretionary power to question evidence before them. The hypothesis of the present work is the assumption that such reluctance to use discretionary power to overcome serious human rights shortcomings of guardianship cases may come from an interplay between the legal system and the personal attitudes of the judge. In the first chapter the roots of sanism shall be described in connection with mental disability decisions. The second chapter gives a summary of core psychological theories of how unconscious mechanisms influence human thinking in everyday life. The chapter also assesses the main findings of interdisciplinary researches directed at analyzing psycho-legal models and extra-legal factors of judicial decision-making. The third chapter gives an overview of the mechanism of guardianship system in Hungary and its alternatives according to the principles of international covenants. In the second part of the chapter an assessment of court decisions is described in order to demonstrate the effect of different legal principles on judicial decision-making. The last chapter attempts to integrate the different approaches to judicial decision-making in order to improve human rights aspects of mental disability legal capacity decisions and judicial accountability in general |
| Supervisor | Lewis, Oliver |
| Department | Legal Studies MA |
| Full text | https://www.etd.ceu.edu/2013/torma_judit.pdf |
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