A theory of legal constraints start with a realistic conception of the interpretation, according to which the legal actors (ie. authorities authorized to produce legal rules) are free to choose between several possible meanings of the texts which they have to apply. Nevertheless, the legal actors do not decide in a completely arbitrary way. From the observation of their decisions, appear coherences. Numerous factors can explain it: sociological, political, psychological, conventional factors… The theory of the legal constraints suggests bringing to light, among all these factors, the existence of some which are specifically legal, that is emerging from the configuration of the legal systems such as the legal actors represent it themselves. This representation is connected to the conception that the actors have of their own power and of the power that other actors have on them, in their conception of the modalities of the legal argumentation and the functioning of the legal system.
A growing number of commentators view discrimination against multiracial (racially-mixed) people as a distinctive challenge to racial equality. This perspective is based on the belief that multiracial-identified persons experience racial discrimination in a manner that judges steeped in historic black-white notions of racism cannot comprehend. I dispute that premise and deconstruct its Personal Identity Equality approach to anti-discrimination law and demonstrates its ill effects reflected in Supreme Court affirmative action litigation.
Over the course of the next five years, no less than 9 out of 12 judges on the Belgian Constitutional Court will have to be replaced because of mandatory retirement. As it stands, the law provides that half of the judges are former politicians, who, theoretically, need not even be lawyers. Of the other half, some are judges, some academics. So, many of the appointees will be new to the job of judging altogether. A renewal of this magnitude gives cause for deeper questions of court identity. How will it impact on the institutional memory of the Court and its decision making protocols? The Belgian Court is relatively young; a new generation of judges may bring along its own perspectives on the responsibilities and idiosyncrasies of constitutional adjudication. As only one hypothesis, it seems that the law clerks, who are highly-specialised career staff, will have a particular role in socializing the new judges in their role, thereby undoubtedly influencing the direction of the Court.
This contribution explores the professional and social relationships that takes place within the Supremes Courts. It proposes to take the French Conseil constitutionnel as an example. Classical literature on legal reasoning, especially in France, tries to explain decisions by referring to rational choice theory (economic analysis of law for instance). In contrast, I focus on the role played by all micro-practices such as role of clerks, documents attached to the decisions, old reports of deliberation, theories, and institutional procedures etc. What is the impact of such practices on the process of judicial decision making? According to this contribution, they influence much more than logical reasoning or external constraints such as political pressure.