a research scholar has to work as a judge

An Analytic Framework for Research on Judicial Decision-Making

• First Online: 04 November 2022

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• Wessel Wijtvliet 17  

Part of the book series: Economic Analysis of Law in European Legal Scholarship ((EALELS,volume 14))

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Proposition about legal actors like judges inevitably rely on assumptions about the type and extent of knowledge researchers can acquire of social reality. Seemingly innocuous claims like “legal rules influence the choices judges make”, “political preferences drive judgments” or “the case disposition makes sense in light of the applicable rules” all stem from fundamentally distinct epistemological positions. Considering their ubiquity in legal scholarship, knowledge of these differences is essential for academic lawyers who consume or produce research on judicial decision-making. The current chapter draws from the philosophy of social science to outline a framework of four such positions. It subsequently applies the resultant typology to a wide variety of research strands in judicial studies, linking the epistemic tenets to the practice of legal scholarship. The philosophical positions differ with respect to the way in which academic lawyers can either causally explain or give interpretative meaning to the relation between judges and legal rules. This novel overview helps researchers understand and weigh the relevant differences between various statements about judges and obtain insight into the often-implicit assumptions behind their own work. As a specification of more general philosophical principles, the framework applies to other types of legal actors as well.

• Philosophy of social science
• Epistemology
• Legal scholarship
• Judicial decision-making

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Hollis ( 1994 ).

Morton ( 2003 ).

Vanberg ( 2002 ).

I am aware that legal scholarship is generally associated with the doctrinal analysis of legal norms and not the relationship between these norms and their environmental influences (Samuel 2009 , pp. 438–442). Be that as it may, whenever legal scholars focus on norms vis-à-vis actors they stray away from doctrinarism into the realm of social science. The chapter exactly and exclusively revolves around that particular situation.

Alternative approaches include Campbell ( 1981 ) (uses a much wider typology); Kincaid ( 1996 ) (presents the scientific or causal study of the meaning people attribute to social action under the rubric interpretation); Reed ( 2011 ) (attempts to integration causal explanation and interpretation in sociology by the use of theory); Rosenberg ( 2012 ) (discusses functionalism more thoroughly); Risjord ( 2014 ) (applies a more topical approach).

Hollis generally uses the term understanding to refer to what others might call interpretation . I will use the latter term throughout this chapter for two reasons. First, interpretation is more commonly used than understanding . Second, understanding may evoke similarity to the wholly separate scientific enterprise of understanding the natural world (De Regt 2017 ). On a separate note, the use of interpretation should be distinguished from interpretation as textual analysis commonly used by lawyers as well as linguists and theologians.

Rosenberg and McIntyre ( 2020 ), p. 40.

An example would be Henderson ( 1993 ). Naturalism in the philosophy of social science should be distinguished from the concept in the philosophy of science. In the latter context, naturalism refers to the position that the entire world is made up of physical matter or physical fields and nothing else (Rosenberg and McIntyre 2020 , pp. 228–235).

Naturalism is a label that encompasses philosophies that may still diverge on numerous matters. Although naturalism succeeded empiricism (Rosenberg and McIntyre 2020 , p. 228), not everything science studies is observable. Thus some scientists assume their most basic variable and inspect these by measuring their effects. However, philosophers disagree whether science should aim to provide a true description of the entire world or only of its observable part (Okasha 2002 , pp. 58–76). Social scientists face a similar difficulty. In the past, this led the behaviorists in psychology to focus solely on that which is actually and indisputably visible, namely behavior of individuals and not their memory, reasoning or will (Hunt 2007 , pp. 274–317).

Dworkin ( 2005 ), p. 3.

Baum ( 2010 ), p. 4.

Risjord ( 2014 ), pp. 154–155, 173–174.

The extent to which exceptionless regularities form the basis of natural laws features prominently in debates between philosophers of science (Carroll 2016 ). Even in the possible absence of natural laws, statistical regularities improve the testability of scientific propositions (Rosenberg and McIntyre 2020 , pp. 75–88).

Obviously matters are different in biology. For a good philosophical introduction see (Dennett 1996 ).

Opponents of what may be dubbed scientific imperialism often point out that application of scientific methods to the social domain has a dehumanizing effect on the study objects or negatively affects the social institutions it studies (Rosenberg and McIntyre 2020 , pp. 22–23). For instance, a frequently heard complaint among legal scholars is that studying the influence of political preferences on judicial decision-making corrodes the legitimacy of the judiciary (Gibson and Caldeira 2011 ). Whatever the validity of the criticism, I consider it a normative-consequentialist and not an epistemological argument against a particular philosophical position in social science, which goes beyond the scope of the chapter.

Taylor ( 1971 ).

For a broader discussion of interpretation see Kincaid ( 1996 ), pp. 191–221.

Hayek ( 1978 , 1980 ).

Scriven ( 1956 ).

Hart ( 1998 ), p. 141.

Hart’s entire argument rests on “It is surely evident that,” which is no argument at all (Leiter 2001 , pp. 299–300).

As always, there are exceptions to this generalization. Alex Rosenberg defends the position that this folk understanding of the mind is incorrect and that most of these classes do not, in fact, exist at all. See Rosenberg ( 2019 ).

Rosenberg ( 2012 ), pp. 38–42.

There are plenty of examples that deviate from the current division. The work of (Giddens 1997 ) attempts to merge the two levels of analysis. Max Weber stresses the idealist aspect of social action in which subjective understanding is pivotal. Despite this seemingly interpretivist inclination, he also tasks sociological understanding with viewing action in terms of common social symbols, which means understanding it as an activity characteristic for a particular social context. Importantly, if an action is typical for a particular society, then it becomes possible to uncover patterns of behavior, which would move his epistemological outlook into the direction of causal explanation (Campbell 1981 , pp. 169–174, 188). Bruno Latour deploys a framework in which humans and non-humans, structures and individuals, explanation and interpretation all play a role in making social phenomena understandable (de Vries 2016 , pp. 83–113).

Durkheim ( 2014 ), p. 102.

Durkheim ( 2014 ), p. 20.

Durkheim ( 2014 ), p. 86.

Durkheim ( 2014 ), p. 129.

Durkheim ( 2014 ), pp. 90, 97–98.

Durkheim ( 2014 ), p. 21.

Durkheim ( 2014 ), p. xxi.

Scott Gordon ( 1997 ), pp. 445–446.

Deflem ( 2008 ), p. 58.

Durkheim ( 2014 ), p. 90.

Durkheim ( 2014 ), p. 34.

Deflem ( 2008 ), p. 62.

Collins ( 1982 ), pp. 2–3.

Deflem ( 2008 ), pp. 24–28.

There are Marxist scholars who interpret Marx to have meant that lower level factors affect these forces as well (Ollman 1998 ).

Hollis ( 1994 ), pp. 6–7; Marx ( 1904 ), pp. 10–11.

Marx and Friedrich ( 1998 ), p. 42.

Durkheim ( 2014 ), p. 111.

Mill ( 1988 ), p. 65.

Mill ( 1988 ), p. 104.

Hollis ( 1994 ), p. 10–11.

Positive science is related to the term positivism and can therefore be confusing. Positivism in the realm of social science has a broader meaning because it often encompasses all approaches that apply the scientific method to the social domain, including holism and Weber’s naturalism that relies on the subjective meaning of actors (Hollis 1994 , 42). Positivism in legal scholarship has a different meaning altogether and refers to the two-pronged philosophical belief that (1) what is to count is law is a social fact; and (2) that law and morality are not necessarily connected (Coleman and Leiter 2010 ).

Hollis ( 1994 ), p. 42.

The description involves the path from theory to observation, not the epistemological position of individual.

Hollis ( 1994 ), pp. 43–44, 49, 64. Although prediction is not necessarily similar to explanation, the positivist Milton Friedman defends a position in which prediction validates a hypothesis and forms the basis of explanation. See (Friedman 2001 ).

Hobbes ( 2008 ), p. 8.

Other classical economics rejected such an approach to economics. They dismissed the use of theory as a driver for research and, instead, opted for an inductive approach on the basis of historical analysis. The accumulation of facts would, according to this school of thought, generate, over time, enough information to construct laws of nature (Scott Gordon 1997 , p. 203).

Scott Gordon ( 1997 ), pp. 202–203.

Scott Gordon ( 1997 ), p. 265.

Smith ( 2009 ), p. 453.

Bentham ( 1879 ), p. 14.

Hollis ( 1994 ), pp. 51–53. Referral to a shared human nature does not mean that all human in all situations act in similar fashion. Utilitarianism after Bentham commences from the much more pragmatic premise that people in general act in a similar fashion when confronted with comparable social situations (Scott Gordon 1997 , p. 252). Some present-day economists still stress methodological individualism as the guiding principle in their discipline while acknowledging the contingency of the social environment, taking seriously contextual differences and negating claims of universality (Rodrik 2016 , pp. 112,181–182).

Elster ( 2015 ), p. 235.

Elster ( 1986 ), p. 4.

Hollis ( 1987 ), pp. 15–28.

Hollis ( 1987 ), pp. 29–46; Hollis ( 1994 ), pp. 115–117.

Winch ( 1990 ), pp. 87–89.

Hollis ( 1994 ), pp. 151–157.

Hollis ( 1994 ), pp. 159–160.

Hollis ( 1994 ), pp. 143, 147.

Warnke ( 1987 ), pp. 48–49.

Hollis ( 1994 ), p. 145.

Hollis ( 1994 ), pp. 165–167, 171.

Hollis ( 1994 ), p. 172.

Hollis ( 1994 ), pp. 174–175.

Hollis ( 1994 ), pp. 164, 168.

Leiter ( 2010 ), p. 111.

Montesquieu ( 1989 ), pp. 157–158.

Montesquieu ( 1989 ), p. 163.

Pound ( 1908 ), p. 608.

Frank ( 1963 ), pp. 127–128.

Neuborne ( 1992 ), p. 421.

Vanberg ( 2002 ), p. 129.

See for instance Segal and Spaeth ( 2002 ), pp. 44–85.

For instance, Tamanaha takes stock of the way in which judges have, for more than a century, been candid about the limited guidance legal norms offer for judgment (Tamanaha 2009 ).

Baum ( 2010 ), p. 3.

Kincaid ( 1996 ), p. 219.

Elliott ( 1972 ).

Smith and Hogg ( 2008 ).

Gillman and Clayton ( 1999 ), p. 6.

Clayton and Gillman ( 1999 ), p. 5.

Gillman and Clayton ( 1999 ), pp. 4–5; Kahn ( 1999 ), p. 196.

Clayton ( 1999 ), p. 31; Gillman ( 1999 ), pp. 74–76; Kahn ( 1999 ), p. 175.

Whittington ( 2000 ), p. 615.

Whittington ( 2000 ), pp. 613–616.

Richards and Kritzer ( 2002 ), p. 307.

Richards and Kritzer ( 2002 ), p. 308.

Richards and Kritzer ( 2002 ), p. 309.

Richards and Kritzer ( 2002 ), pp. 305–306.

Cross ( 1997 ), p. 326.

Segal ( 2008 ), p. 19.

Horwitz ( 1992 ), p. 1.

Pritchett ( 1948 ), p. 16.

Segal and Spaeth ( 2002 ), p. 86.

Spaeth ( 2008 ), p. 753.

See for examples outside the US context Voeten ( 2007 ); Voeten ( 2008 ); Alarie and Green ( 2009 ); Weiden ( 2011 ); Hanretty ( 2012 ); Hanretty ( 2013 ); Llanos and Lemos ( 2013 ).

Epstein and Knight ( 1998 ), p. 11–12.

Ferejohn and Weingast ( 1991 ), pp. 571, 574; Baum ( 1997 ), pp. 21, 25; Kastellec ( 2017 ).

Epstein and Knight ( 1998 ), pp. 22–23. Over time, this narrow focus has increasingly led to sharp criticism (Epstein and Knight 2013 ).

Epstein and Knight ( 1998 ), pp. 11–17.

Neither environmental constraints nor the relevance of rules pulls the strategic model away from methodological individualism. Environmental constraints consist of the goal-seeking behavior of other individuals operating in the environment of an adjacent political body. Rules and norms may seem more reminiscent of holism. Be that as it may, actors do not abide by rules because of their socialization or the immanent effect they radiate. Deviation from rules merely could lead to the expectation that external actors will respond in a fashion that hampers the attainment of goals. Again, the ability to write convincing legal treaties that establish a decision strongly within the legal system and conceal its subjective nature determines the degree to which judges are free to act on preferences. This perspective also raises pertinent questions about lower court decision-making. Scholars traditionally acknowledge that legal indeterminacy and the sway of rules play out differently on the level of lower and appellate courts (see for instance Twining ( 2020 )). However, the difference in and of itself does not arbitrate whether the decisions of lower court judges are caused by precedents formulated on a higher level (holism) or by their fear of being overruled on appeal (individualism).

Epstein and Knight ( 1998 ), pp. 145–157.

Posner ( 1993 ), p. 39; see also Schauer ( 1999 ).

Epstein et al. ( 2013 ), pp. 30–50. Ironically, two critics remark that for all its theoretical ambitions, the empirical practice of the book mainly involves testing the influence of ideology on judging (Cameron and Kornhauser 2015 ).

Baum ( 1997 ).

Baum ( 2008 ), p. 21.

Baum ( 2008 ), p. 60.

Baum ( 2008 ), p. 158.

Siems and Mac Síthigh ( 2012 ), pp. 654–655.

Rosenberg ( 2012 ), pp. 44–45; Risjord ( 2014 ), p. 46.

Leiter ( 2003 ), p. 18.

For a comprehensive introduction into the debate, see Shapiro ( 2007 ).

Hart ( 1958 ), p. 599.

Bayles ( 1990 ), pp. 30, 34.

I use the phrase implication because legal positivists generally remain agnostic about the relation between legal norms and actual judicial behavior (Leiter 1999 , p. 1152).

Hart ( 1998 ), p. 98.

Hart ( 1998 ), p. 137.

Hart ( 1998 ), p. 138.

Hart ( 1998 ), p. 249.

The first part of the sentence makes a causal argument while the second part is an example of an interpretative claim.

Dworkin ( 2010 ), p. 13.

Dworkin ( 2010 ), p. 90.

Dworkin ( 2010 ), p. 64.

Dworkin is thus not a moral realist in the sense that he proposes the existence of a moral order as a matter-of-fact, from which the meaning of legal terms can be deduced (Dworkin 2010 , p. 86).

Leiter ( 1996 ), p. 255.

Kelsen ( 1949 ), pp. 132–134.

Kelsen ( 1949 ), p. 134.

Barak ( 2006 ), pp. 4, 20–21.

Barak ( 2006 ), p. 311.

Barak ( 2006 ), p. 314.

Sunstein ( 2015 ), pp. 1–2.

Sunstein ( 2015 ), pp. 37–39, 41.

Jones and Sarat 2017 .

In The Simpsons, season 28, episode 2, Mr. Burns uses a virtual reality device to experience a life in which he would have had a family. The artificial intelligence involved allows him to design his children in his image, leading him to exclaim ‘It’s too beautiful. Like a Supreme Court full of Scalias.’ The tongue-in-cheek reference not only testifies to Scalia’s reach beyond the legal profession into popular culture but also illustrates the role an individual can play in shaping normative structures.

Rosenberg ( 2012 ), pp. 38, 42.

Kincaid ( 1996 ), p. 93.

Jost ( 2012 ), pp. 58–68.

Hayek ( 1978 ), p. 40.

Carroll ( 2017 ).

Carroll ( 2017 ), p. 3.

Carroll ( 2017 ), pp. 379–380.

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Research Fellow at the Leuven Centre for Legal Theory and Empirical Jurisprudence. I would like to thank Toon Agten, Jitte Akkermans, Jan-Baptist Lemaire, Laura Ritter, Wolfgang Weigel and the editors for their useful suggestions regarding this chapter. Any mistakes in the text remain my own.

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Wijtvliet, W. (2022). An Analytic Framework for Research on Judicial Decision-Making. In: Bystranowski, P., Janik, B., Próchnicki, M. (eds) Judicial Decision-Making. Economic Analysis of Law in European Legal Scholarship, vol 14. Springer, Cham. https://doi.org/10.1007/978-3-031-11744-2_7

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