Law & Ethics of Human Rights
Editor-in-Chief: Stopler, Gila
Editorial Board: Benvenisti, Eyal / Cohen-Eliya, Moshe / Macedo, Stephen / Rosenblum, Nancy
CiteScore 2018: 0.19
SCImago Journal Rank (SJR) 2018: 0.118
Source Normalized Impact per Paper (SNIP) 2018: 0.225
The identification of courts as open and public institutions is commonplace in national and transnational conventions. But even as those attributes are taken for granted, the privatization of adjudication is underway. This Article explores howduring the last few centuriespublic procedures came to be one of the attributes defining certain decision-making institutions as courts. The political and theoretical predicates for such practices can be found in the work of Jeremy Bentham, a major proponent of what he termed publicity, a practice he commended by detailing the architecture for various entitiesfrom the Panopticon for prisoners to the Parliament for legislators and courts for judges. Bentham argued the utility of publicity in enhancing accuracy, public education, and judicial discipline.Moving forward in time, I examine various contemporary techniques in several jurisdictions that shift the processes of adjudication toward privatization. Included are the devolving adjudication to less-public government entities such as administrative agencies; outsourcing to private providers; and reconfiguring the processes of courts to render them more oriented toward settlement.For those appreciative of the role courts play in developing and protecting human rights, these new practices are problematic because adjudication can itself be a site offering opportunities to engage in democratic practices. The odd etiquette entailed in public adjudication under democratic legal regimes imposes obligations on government and disputants to treat each otherbefore an observant and often times critical publicas equals. Public and private power can be constrained by such performative requirements. When decision making takes place in public, the application of law to fact can engender normative contestation predicated on popular input. This claim of public adjudications democratic potential and utilities is, however, not an argument that the judgments provided and the norms developed will necessarily advance a shared view of the public welfare. Hence, while eager to re-engage Bentham, I offer different claims for publicity and less optimism about its consequences.
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