Reason and Fairness: Constituting Justice in Europe, from Medieval Canon Law to ECHR (2 volumes)

Facing the current challenges to judiciary it is more topical than ever to examine the history of the fair trial guarantee, which lies at the heart of any independently constituted judiciary. Eager to learn from Asian traditions of justice this monograph explains how the guarantees of an independently constituted judiciary had begun far earlier than (Western European) liberalism and its idea of the rule of law. Taking a stand in comparative legal history, contemporary court organization and in the European Convention of Human Rights' genesis the book's line of argumentation is orientated towards the methodological care to clarify the tertia comparationis, here derived from develops the conflict situation, against which the plea for courts established by law has arisen. Corresponding to foundations of justice as the virtuous, fair, and rightful behaviour towards other human beings – a common thread extending between the philosophies of Aristotle all the way to Kant (Nicomachean Ethics, Book II, chap. 7, 1107a, 142; Metaphysical Beginnings 30) – such a focus on conflicts reveals arguments unheard thus far: the canon law complementarity between procedural and substantive justness, the early modern pleas against any ad hoc judicial commissions, allocation of cases, or impositions of particular judges. Ordinary judicial competences stood not only for institutional independence of the judiciary, but especially for the predictability of the decision adhering only to the rules of the law. Therefore, it is the particular goal of this monograph to explain its methodological conflict orientation as based on the specific European rationalization of a ‘fair judicial attitude’ as the decisive factor for ‘justice seen to be done’ (e.g. R v. Sussex Justices, ex parte McCarthy (1924) 1 KB 256, 259 per Lord Hewart, C.J.; Gustav Radbruch, ‘Statutory Lawlessness and Supra-Statutory Law (1946)’, trans. Bonnie Litchewski Paulson and Stanley L Paulson, (2006) 26 Oxford Journal of Legal Studies 7). ‘Fair attitude’ is not left to ethics, but determined via rationally determinable legal categories.

This is the contribution the monograph would like to make for the Asian-European dialogue: any international fair trial-standards can rely on comparative historical findings of constituting justice.