Approximative justice : dealing with differends and cross-border evidence in the EU

Gonourie Waldenström, Anna Andrea Elisabeth (2022) Approximative justice : dealing with differends and cross-border evidence in the EU. PhD thesis, Birkbeck, University of London.

Abstract

This thesis is about approximative justice. Approximative justice appears in a judgment that the parties accept as subjectively just because they have been heard and treated fairly, and that at the end of the process, the person in the street would perceive as objectively correct. This distinguishes between justice as procedure and justice as result and proposes an understanding of justice as a legal symphonic arrangement of the constitutive parts of the case. With inspiration from Lyotard’s The Differend, evidence is understood as a language act, the sense of which depends on various conditions. As evidence is subsumed under the law, which is a normative human practice, a differend occurs. A comparative study of Swedish and French civil procedure shows the impact of the communicatory structure of judicial fact-finding on the sense of the evidence. It is also found that various purpose-points of the human practices of national law as well as evidence’s extra-legal environment likewise determine the sense of the evidence. When evidence is taken across borders these conditions constitute hinderances for evidence in its role in the formation of a just judgment. The party may therefore struggle to be heard and the judge struggle to know the case through the means of cross-border evidence. This puts critical light on EU’s ambitions to increase access to justice through swift cooperation between the Member States in cross-border taking of evidence. Approximative justice is a response to the relativity of facts, which make justice as the rational correct judgment on the basis of evidence unrealistic. The thesis thus concludes that the indeterminacy of evidence demands a conception of justice which allows for the approximative.

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