In Chapter 1, it was shown that one difference between overall assessments and balancing of interests is that a law-based balancing of interests refers to a license to take an action. Should camera surveillance be permitted? Should exemption be granted for a building within the shoreline-protected area? Is there extraordinary cause to sustain the petition for disclosure? These cases contain an uncertainty – that must be factored in when the decision is made – on what consequences the decision can be expected to have. If it concerns an application for camera surveillance intended to reduce crime, the decision-maker must assess whether, and in that case how much, crime will be reduced in the camera surveillance area and as a result of camera surveillance. The reduction in crime is the utility of the decision. The harm that a decision on camera surveillance may result in is that local residents may feel uncomfortable being under such surveillance. The interest in suppressing crime must be weighed against the privacy interest and this is done in the model that the Swedish Data Protection Authority calls the principle of preponderance of evidence in which utility and harm are placed in the scales.1 Similar reasoning can be done concerning the weighting performed in a claim for declaratory judgement. Will this judgment eliminate the uncertainty of the legal relationship? What happens if it does not? A declaratory judgement over the entire legal relationship between the parties is beneficial because it could remove all uncertainty, but if uncertainty remains, there is a risk of additional processes that can be costly and cause inconvenience. Even in this case, a prognostic assessment must therefore be made along with the suitability assessment, containing utility and harm, the last perhaps primarily in regard to the financial costs of the process. As stated in several places in this book, the additive model described and used, SAW, is based on there being no uncertainties or at least that this uncertainty is small with regard to the existence of criteria and the probability of an outcome occurring. The model is, in other words, deterministic with regard to the outcome and the criteria. It has been said that a consideration of uncertainty can be added by calculating for each option the probability of it occurring.2 It has also been argued that uncertainty in law can be handled with fuzzy logic.
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Despite the apparent skepticism, economists and human rights scholars share much in common. Many indicators used by development economists to measure human development have been used as proxies for the realization of human rights. Development economists and human rights scholars have also been working together to assess whether governments are doing as much as they can to realize human rights, given available resources. Finally, economists and (increasingly) human rights scholars both make substantial use of multiple regression analysis to investigate relationships of interest, and face similar methodological challenges in implementing this approach. All these areas have potential for fruitful collaboration.
The evaluation of evidence has been a controversial topic in Nordic jurisprudence for a long time, and particularly in recent decades. Two methods, the evidentiary theme method and the evidentiary value method, have been set against each other. These methods will be briefly presented below as they provide a framework for the following sections in the chapter.1 A few other evidentiary theories in the Nordic countries and the concept of robustness will also be briefly described. Thereafter, in the following section, it will be asserted that the basic view that is still prevalent in Swedish evidence law doctrine, that the evaluation of evidence is an epistemological activity based on the use of sentences of experience and general deduction rules, appears too narrow as an explanatory framework for the intellectual activity labelled evaluation of evidence.2 The next section will discuss how fuzzy logic can be used as a method in the evaluation of oral statements. This method of analysing and evaluating evidence deviates from the prevailing probability theory models and should be seen as an alternative or a complement to certain evidentiary situations. As has been described in this book, MCA can be used on questions of law. In the book the method has been applied on the balancing of interests and overall assessments. MCA provides a structured way to deal with these assessments in the same way as methods for the evaluation of evidence, such as the evidentiary theme method or the evidentiary value method, are structured ways to handle questions of fact. The objective of using structured methods in both situations is to reduce the risk of arbitrariness and safeguard law and order. However, as far as questions of law are concerned, it has been fully accepted that the balancing of interests and overall assessments are made intuitively and that the room for discretion is significant. Evidence, on the other hand, is not seldom calculated to the decimal point in legal doctrine because it should be exact. This attitude begs the question of why correct evaluation of evidence is deemed to be more important than correct application of law. The overall objective with this chapter is to demonstrate that the gap between evaluation of evidence and the application of law can be closed as far as the use of structured methods is concerned. In addition, using fuzzy logic on oral statements gives evidence an interesting twist.
Steven L.B. Jensen and Roland Burke
Human rights has been described as a paradigmatic site for writing transnational history. While there is much promise in the discipline, history is not neutral territory for human rights researchers to navigate. With greater awareness of, and responsiveness to, the methodological challenges attendant to human rights history, historical inquiry can make a more substantial contribution to the field. This chapter identifies some blind spots that have influenced human rights research, and seeks to address questions about working with historical sources. It also charts out methodological approaches that can make historical research a more valuable, critical-reflective companion to understanding the evolution of human rights past and present.
Human rights, in all parts of the world, operate in a terrain were a plurality of normative orders coexist, interact and sometimes conflict. Whether legal pluralities prevents or promotes human rights for different groups and for differently positioned individuals is a contested issue. This chapter shows how the role of legal pluralities as an enabling and constraining factor to human rights realization can be studied empirically in local contexts. The use of law as a semi-autonomous social field is demonstrated in comparative case studies of the interplay between international, national and local water norms in three social and geographically distinct localities in Zimbabwe.
Hans-Otto Sano and Tomas Max Martin
This chapter argues that human rights studies lack insights on the endogenous organizational dynamics and their impact on human rights, i.e. on ‘drivers’ and ‘spoilers’ for human rights change induced by forces inside state (and interstate) organizations. This problem is compounded by the fact that human rights studies rarely pay much attention to organizational and institutional theory. The chapter addresses this methodical deficit on duty-bearers’ agency. The main questions addressed are: what methods can be used in gaining insights on how these duty-bearers strategize, implement and decide on human rights? In what way are and can these methodological choices be guided by theoretical angles that take internal dynamics more adequately into account?
Human rights are a natural subject for interdisciplinary and multimethod research but it is not clear whether the emerging scholarship fully lives up to its demands. This chapter asks: how are pluralistic approaches best advanced in research? How can we use different disciplines in framing research questions and choosing methods? And, what do we mean by a multimethod approach? In answering these questions, this chapter discusses different streams of interdisciplinary human rights research, identifies cross-cutting faultlines, and offers a multimethod framework that includes methods from the social sciences, humanities (including law and philosophy) and natural sciences.
Earlier in this book, intuition was compared and contrasted with the use of a structured decision-making method. The following chapter provides a brief overview of intuition. Virtually everyone uses what is commonly referred to as intuition. However, there is no definitive answer on what intuition actually is. Instinct, on the other hand, is different than intuition. If someone puts their hand on a hot stove, they will pull their hand back instinctively, in self-preservation. If a box of matches is emptied out onto the floor and a person is asked to estimate the number of matches, they will make a rapid intuitive assessment. If the person is instead asked to count each match, it is a completely different thought process. In all likelihood, the result of the assessment will be correct if each match is counted, while a rapid intuitive estimate can lead to serious misjudgements. If, however, the person is asked to repeatedly intuitively assess the number of matches emptied onto the floor, and these are then counted, the intuitive estimate will improve after each experience. Gradually, the intuitive assessment therefore will become quite reliable because of the past experiences. At the end of the chapter, abbreviated decision paths, heuristics, are described. These are, among other things, based on that practice or past experiences leads to intuitive skill.
This chapter will first provide an overview of the decision process under RB before the court’s ruling in a case. A brief description will then be provided of how process materials are structured under RB to be manageable, and it will be shown how this is part of a rather complicated decision process. The aim is to clarify decision aspects of well-known procedural law concepts and principles and demonstrate how MCA can be adapted into this decision process. MCA and the simple additive model, SAW, will then be applied in three overall assessments. The first example describes a hypothetical procedural situation with respect to the choice between video conferencing and a court hearing. The other, which describes a civil action, concerns the application of 36 AvtL. The third example concerns a decision on penalty in a criminal case: prison or suspended sentence. Examples two and three are based on actual legal cases from the Supreme Court – NJA 1999 p. 408 and NJA 1997 p. 652. The use of these has both advantages and disadvantages. One advantage of course is that these are real cases that show practically how SAW could have been used in practice. One disadvantage could be that the outcome of the assessments is known through the pronounced judgements, which may have affected the assessments that are done in the analyses. Furthermore, this chapter also presents and provides an introduction on fuzzy logic, which is applied along with SAW in NJA 1999 p. 408. 4.2 RB AS DECISION PROCESS RB contains a number of concepts, principles and legal constructions as well as concrete procedural rules, which focus on decision-making. However, it is only the voting rules that immediately address the fact that different members of the court have different opinions about how the case should be determined. Concerning overall assessments, balancing of interests and vague and indeterminate prerequisites, such as ‘the best interests of the child’ or ‘unreasonable’ under 36 AvtL, it is not possible to vote specifically on the concrete legal facts that constitute the necessary conditions in question. Under the voting rules, it is deemed to be too complicated to put them up for separate vote. It is, however, always possible to vote on different legal alternatives (options). If, for example, parents disagree on who should have custody of the child – and shared custody is out of the question – MCA can be used to support the analysis and as decision support, before any vote is taken on the choice of legal alternatives (custody to the father or the mother) under the rules for this in RB. As far as 36 AvtL is concerned, the alternatives are to modify the agreement clause, to set aside the agreement clause, or to set aside the entire agreement. Another option, of course, is to disapprove the statement of claim so that the signed and challenged agreement remains intact and in force.