Empathy and procedural justice in clash of rights cases
Empathy and procedural justice in clash of rights cases
How should judges and the courts deal with litigation where there is plausible argument that each side’s rights have or would be violated and where at the heart of the dispute lies moral and cultural disagreement about ideas of equality, free speech and the relevance of religion in professional and public life? These were the issues that arose in two well known cases decided by two Supreme Courts on either side of the Atlantic. In Masterpiece Cakeshop v Colorado Civil Rights Commission,1 a bakery refused to supply a gay couple with a cake for their wedding celebration.2 In the similar, but relevantly different, case of Lee v Ashers Baking Company3 a bakery refused to provide a cake with the phrase ‘Support Gay Marriage’ and a picture of Bert and Ernie from Sesame Street on it. This article considers the narratives put forward by the litigants in these cases and assesses the judgments from the perspective of the concept of the culture of justification. The focus will therefore not be on the doctrinal merits or otherwise of the decisions themselves but on how the literature on procedural justice, empathy and legal storytelling can provide new insights into these kinds of cases and particularly into improving the decision and judgment making process.
350-371
Pearson, Megan
fc57169e-5c44-405a-9d80-806ade39c1f2
June 2020
Pearson, Megan
fc57169e-5c44-405a-9d80-806ade39c1f2
Pearson, Megan
(2020)
Empathy and procedural justice in clash of rights cases.
Oxford Journal of Law and Religion, 9 (2), .
(doi:10.1093/ojlr/rwaa012).
Abstract
How should judges and the courts deal with litigation where there is plausible argument that each side’s rights have or would be violated and where at the heart of the dispute lies moral and cultural disagreement about ideas of equality, free speech and the relevance of religion in professional and public life? These were the issues that arose in two well known cases decided by two Supreme Courts on either side of the Atlantic. In Masterpiece Cakeshop v Colorado Civil Rights Commission,1 a bakery refused to supply a gay couple with a cake for their wedding celebration.2 In the similar, but relevantly different, case of Lee v Ashers Baking Company3 a bakery refused to provide a cake with the phrase ‘Support Gay Marriage’ and a picture of Bert and Ernie from Sesame Street on it. This article considers the narratives put forward by the litigants in these cases and assesses the judgments from the perspective of the concept of the culture of justification. The focus will therefore not be on the doctrinal merits or otherwise of the decisions themselves but on how the literature on procedural justice, empathy and legal storytelling can provide new insights into these kinds of cases and particularly into improving the decision and judgment making process.
Text
Empathy_and_Clash_of_Rights Final
- Accepted Manuscript
More information
Accepted/In Press date: 27 April 2020
e-pub ahead of print date: 13 June 2020
Published date: June 2020
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Local EPrints ID: 440695
URI: http://eprints.soton.ac.uk/id/eprint/440695
PURE UUID: 7e35cae4-d8a9-4f56-937c-ba7c234b8d2f
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Date deposited: 13 May 2020 16:36
Last modified: 17 Mar 2024 05:32
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