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Tuesday, March 15, 2011

Dissertation on the judiciary in historical and sociological context

Martine Valois' doctoral dissertation, "Evolution du droit et de la fonction de juger dans la tradition juridique occidentale. Une etude sociohistorique de l'independance judiciaire" (Universite de Montreal, 2009) is now available on Proquest.
Here's the abstract in English:
This thesis examines the function of the judiciary in the legal system in a historical and sociological perspective. Through the lens of history and sociology, the author reviews and considers the changes in the role of the judge in the development of law. The heuristic benefit of this approach borrowed from history and systemic theory, is invaluable. Firstly, it demonstrates that the place reserved for the judicial creation of law in the legal system is tributary to what is considered as the source and legitimacy of law. Secondly, it sets in an evolutionary perspective the significant changes that occurred in the development of law and the judicial function. The characterization of the
judicial function evolves from a political science's viewpoint to a legal perspective. Through this reappropriation by the legal science, the judicial production of law can now be examined in its systemic function. As well, exploration of the sources of the function of justice renders possible and understanding of the rationale used by judges throughout history to legitimize their position in the legal system.

The thesis supports the proposition that, along with legal conditions relating to the status of judges, a set of sociological conditions must exist in order for judicial independence to be fully protected and the rule of law upheld. These conditions are social differentiation, a structure of conditional programs for law, and limitation in
the social system of the responsibility and accountability of judges following
the fulfillment of their judicial function.

Finally, in the final stage of her socio-historical research, the author demonstrates how the current judicial interpretation of the conditions for judicial independence enhances the theoretical foundations that situate the judicial function at the centre of the legal system.

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