What Judges Need to Know: The Anti-Factual Challenge and Judicial Review
Today, there is a ‘knowledge crisis’, informing ‘societies of doubt’. Looked at more closely, we are confronted with attacks on expertise and knowledge, on facts and truth, as one chapter in the autocratic playbook. This challenges the legal system in many ways, be it legislation and other types of regulation, or administration and governance, as well as legal protection by courts. For courts, the challenge is particularly problematic. Judges do not only have to apply law that is more complicated than ever, with legal pluralism ranging from local to global norms. Courts are also, next to independent media, civil society and the academy, targeted by autocrats because they are in their way. Yet in addition, courts must navigate facts in new ways. The article argues that courts are needed as facilitators, curators and communicators of facts, to counter the threats and defend, not least, democracy and justice. Also, legal education must ensure that future lawyers and judges are up to these
Today, there is a ‘knowledge crisis’, informing ‘societies of doubt’. Looked at more closely, we are confronted with attacks on expertise and knowledge, on facts and truth, as one chapter in the autocratic playbook. This challenges the legal system in many ways, be it legislation and other types of regulation, or administration and governance, as well as legal protection by courts. For courts, the challenge is particularly problematic. Judges do not only have to apply law that is more complicated than ever, with legal pluralism ranging from local to global norms. Courts are also, next to independent media, civil society and the academy, targeted by autocrats because they are in their way. Yet in addition, courts must navigate facts in new ways. The article argues that courts are needed as facilitators, curators and communicators of facts, to counter the threats and defend, not least, democracy and justice. Also, legal education must ensure that future lawyers and judges are up to these new callings.
Today, there is a ‘knowledge crisis’, informing ‘societies of doubt’. Looked at more closely, we are confronted with attacks on expertise and knowledge, on facts and truth, as one chapter in the autocratic playbook. This challenges the legal system in many ways, be it legislation and other types of regulation, or administration and governance, as well as legal protection by courts. For courts, the challenge is particularly problematic. Judges do not only have to apply law that is more complicated than ever, with legal pluralism ranging from local to global norms. Courts are also, next to independent media, civil society and the academy, targeted by autocrats because they are in their way. Yet in addition, courts must navigate facts in new ways. The article argues that courts are needed as facilitators, curators and communicators of facts, to counter the threats and defend, not least, democracy and justice. Also, legal education must ensure that future lawyers and judges are up to these new callings.
Executive Summary
The article highlights the 'anti-factual challenge' and its implications for judicial review. As societies grapple with a 'knowledge crisis', autocratic forces target expert knowledge, facts, and truth. This challenges the legal system, particularly courts, which must navigate complex laws, legal pluralism, and attacks on their independence. The article argues that courts must facilitate, curate, and communicate facts to counter these threats and defend democracy and justice. The author emphasizes the need for legal education to prepare future lawyers and judges for these new challenges. This article is a timely contribution to the debate on the role of courts in societies facing a knowledge crisis.
Key Points
- ▸ The 'anti-factual challenge' poses a significant threat to judicial review and the rule of law.
- ▸ Courts must adapt to navigate complex laws and legal pluralism.
- ▸ The independence of courts is under attack, making it essential for them to communicate facts effectively.
Merits
Strength
The article provides a clear and concise analysis of the anti-factual challenge and its implications for judicial review.
Strength
The author emphasizes the importance of legal education in preparing future lawyers and judges for the challenges of the knowledge crisis.
Demerits
Limitation
The article could benefit from a more nuanced discussion of the specific ways in which autocrats target expertise and knowledge.
Limitation
The author's emphasis on the role of courts in communicating facts may overlook the potential limitations of judicial activism in addressing the knowledge crisis.
Expert Commentary
The article offers a timely and thought-provoking analysis of the anti-factual challenge and its implications for judicial review. However, the author's emphasis on the role of courts in communicating facts may overlook the potential limitations of judicial activism in addressing the knowledge crisis. Furthermore, the article could benefit from a more nuanced discussion of the specific ways in which autocrats target expertise and knowledge. Nevertheless, the article is a valuable contribution to the debate on the role of courts in societies facing a knowledge crisis, and its implications for practical and policy responses to this challenge are significant.
Recommendations
- ✓ Future research should explore the specific ways in which autocrats target expertise and knowledge and the implications of this for judicial review and the rule of law.
- ✓ Courts and legal educators must prioritize the development of critical thinking and fact-based reasoning skills in future lawyers and judges to address the challenges of the knowledge crisis.
