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Philosopher Kings?The Adjudication of Conflicting Human Rights and Social Values$
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George C. Christie

Print publication date: 2011

Print ISBN-13: 9780195341157

Published to Oxford Scholarship Online: May 2011

DOI: 10.1093/acprof:oso/9780195341157.001.0001

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The use of Balancing Tests and Factor Analysis—The Inevitable Tendency to Resort to Bright-Line Tests

The use of Balancing Tests and Factor Analysis—The Inevitable Tendency to Resort to Bright-Line Tests

Chapter:
(p.105) 8 The use of Balancing Tests and Factor Analysis—The Inevitable Tendency to Resort to Bright-Line Tests
Source:
Philosopher Kings?
Author(s):

George C. Christie (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195341157.003.0008

The acceptance of the need for a process of case-by-case adjudication to resolve conflicts between defeasible human rights and important social objectives, as well as conflicts between two defeasible human rights, is a clear acknowledgment that the quasi-deductive model of adjudication simply is not adequate despite the effort to expand the universe of legally relevant sources to include fundamental moral principles. As seen in Chapter 7, even if these principles are universally accepted, and some clearly are not, they are still too broad in scope to provide the courts with the guidance they are seeking. It is not surprising therefore that courts should talk about the need to “balance” the conflicting interests or rights at play in the circumstances of the particular case before the court. This chapter considers whether such a process can produce clearly defined rights while, at the same time, insulating the courts from the charge that they are assuming the role of super-legislatures or possibly that of politically unaccountable administrative agencies or, worse yet, that of spokesmen for some ill-defined elite intent on imposing upon society its views on controversial social issues.

Keywords:   defeasible human rights, litigation, judicial decision-making, adjudication, courts

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