ANALYSIS OF THE INFLUENCE OF NON-LEGAL FACTORS ON COURT DECISIONS

Abstract

Judicial decision making has been a subject of studies, by scholars, for decades. There are two main branches of such studies. First, legal formalism and its supporters who base decision making process of judges on logical reasoning, law, and processes bound by rules.

On the other study is legal realism, supporting arguments that judicial decision making process is not bound by rules and rarely logical. Instead legal realism emphasises on intuitive aspect of decision making.

In the United States legal realism highlighted significance of non-legal aspects in judicial decision making process such as economic, social and political considerations. Influence of various factors on judge’s decision take place before considering the law. In other words, judge first identifies the decision towards client, shortly thereafter use legal instruments to support the decision that has been made. In this circumstances, it can be suggested that studies of legal realism probably as important as controversial in judicature.

One of such controversial studies recently carried out by Danzigera and Levavb. They recorded sequential parole decisions over thousand rulings made by eight Jewish-Israeli judges. The aim was to identify whether extraneous variables affects judicial rulings in granting parole or excepting status quo by rejecting the parole request.

The result shows that chances of granting favourable rulings is higher after lunch break and at the beginning of the day. In contrast, after large number of granted in favour rulings, likelihoods of denying the request increases. Although ironically drown by authors caricature that justice is “what the judge ate for breakfast” raises an important question on whether judicial decisions can be influenced by non-legal consideration or not, it seems some non-legal factors such as race might indeed unconsciously have an influence on judges’ decision.

On order to answer to this question, the paper will first define theoretical aspects of decision-making processes, described in dual process theory. Second, it will examine empirical studies conducted on racial biases in judicial decision making, and provide an example of such racial biases in Jaba’s case. The final part of this paper will include recommendations for further research.