Informatics and ideology of judicial decision-making

• Autore: Jerzy Wróblewski
• Pagine: 117-129

Page 117

@Introduction

1. The development of contemporary informatics is one of the relevant features of the technological revolution of our time, and legal informatics is its corollary in the area of law. One asks now how law and lawyers will respond to the challenges brought by this revolution¹.

   I will deal only with a fragment of this large problem, viz with the relations between ideology of judicial decision-making and the possibilities of legal informatics. The ideology in question is a set of ideas how the judge should decide the cases in the best way, and whether legal informatics can help to perform his task better and/or change his tasks and his ideology.

   To simplify my analysis I deal not with decision-making processes but only with the justification of judicial decisions, within the paradigm of statutory law system and its operation. I will not analyze how far the formulated theses are applicable to common law tradition, but hypothesis is that to a quite large extent this is the case.

   @Judicial Decision-Making

2. judicial decision-making is analyzed from a descriptive point of view. The object of description is either the decision-making process or the decision with its justification, or both of them.

   From this point of view one describes the object of analysis, singles out its conditioning factors, one seeks to make generalizations, to discover regularities and, eventualy, to predict the decisions or their trends.

   The final product of the descriptive approach is a descriptive theory but it seems that today we have to do only with some fragments of this type of theory.

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3. There is also an interest in formulating "normative theories of judicial decision-making" which answer the question "how the judicial decision should be made and/or justified". This theory formulates the values the judge ought to accept and the directives of his activity. The former determine the purposes and the preferences of the judge determining his choices. The values refer either to the content of judicial decisions or to their procedures. The directives formulate the patterns of due judicial behaviour and justify judicial decisions.

   If we accept the term "normative theory", which offends some methodological intuitions, then this theory should fulfill rather strong conditions. Such theory is a well systematized set of evaluative statements and directives, "consistent" and "coherent" in the defined meaning of these terms. Moreover, this theory is "complete": the values and criteria of choice the judge needs are determined by this theory, It is evident that it would be very difficult, if possible at all, to formulate such theory.

4. Taking this into account I would single out ideology of judicial decision-making which has the same scope as normative theory, but it does not fulfill such strong conditions: is neither complete nor consistent and coherent. It formulates different values which should be equilibrated, directives which point at opposite directions, and, thus, do not determine the judicial decisions as the normative theory should do².

   It seems that legal doctrine formulates only ideologies of judicial decision-making, and, moreover, that quite often mixes them with the allegedly descriptive account of this activity.

   @Ideology of Legal and Rational Judicial Decision

5. Not looking too far back into the history I single out three basic types of the ideology of judicial decision³.

   5.1. The "ideology of the bound judicial decision" sets as fundamental values legal certainty, security and predictability, and strongly opposes law-making and law-applying. The creativity belongs to the former, and the latter is thought of as a "logical" operation of a deductive character in which judicial evaluations do not play any relevant role. The paradigmatic example is traditional legal positivism in its crude formulations of l'ecole d'exegese or Begriffsfurisprudenz.

   5.2, The "ideology of a free judicial decision" as basic value treats the just decision in an individual case, which not always demands following a legalPage 119 rule. Application of, law is a creation of law, and is based on the evaluations of the decision-maker which are his own responsability. The paradigmatic example are radical versions of the free-law movement thought of as the opposition against formalism of legal positivism.

   5.3. The third type of ideology is placed mid-way'between the two preceding ideologies. This is the "ideology of legal and rational decision", and it will be our frame of reference because this ideology based on the most up-to-date theory of justification of judicial decisions. This ideology is "formal" in the sense that does not determine several decisional choices, and, therefore, is accepted by different legal axiologies accepting the values of legality and rationality.

6. Ideology of legal and rational judicial decision aims at implementing two bask values: legality and rationality. Rationality has. a somewhat different status than legality: the former 'means justifiability of decision, whereas the latter includes valid legal rules as one of the justifying arguments of decision, which has a special importance.

   6,1. Judicial decision should be a justifiable decision. This means, that when needed, the decision-maker ought to be able to present arguments underlying this decision. These arguments are the premisses (reasons or arguments) from which the decision is "inferred" according to the accepted justificatory reasonings (internal justification). These reasons and rules of justificatory reasonings could be, however, also appraised and they should be good reasons (external justification), justifiability is the symptom of rationality: one cannot decide whether a decision is rational or not without an analysis of its justification. Hence on uses corollary conceptions of internal and external rationality⁴.

   Judicial decision is justified by two types of arguments: by knowledge and preferences of the decision-maker, Knowledge covers knowledge of law and of facts which are thought of as relevant for the decision. Preferences, the axiological component of justificatory reasons, mean here the values accepted by decision-maker which determine the purposes of his activity and the criteria of his choices. Ideology of judicial decision-making forms the core of this axiological component.

   Rationality is a value of the ideology in question: justifiability of judicial decision has a positive value necessary for accepting the decision. Rational decision is thus a decision which is not arbitrary. The minimum rationality of decision consists in its internal rationality, because it means consistency and coherence in argumentation, It is an open question, whether other valuesPage 120 are Inherent in rationality, such as generality, universalizability, reasonableness etc⁵.

   The Ideology of legal and rational judicial decision neither presupposes a content of law nor determines the criteria of external rationality. It presupposes, however, a theoretical construction of justification of judicial decision,

   6.2, Legality Is understood as conformity with law. This conformity Is formulated In relational statements, and their normal formula Is "X Is consistent with the legal rule N"⁶. But this conformity Is positively appraised: legality as a value is expressed In a formula "X is consistent with the legal rule N, and every X consistent with the legal rule N has a positive value". This positive value Is the value of formal legality⁷. Ideology In question accepts the value of formal legality: judicial decision should be justified by applied legal rule or, In other words. It should be consistent with law. One of necessary arguments justifying judicial decision is, hence, its legality. The theoretical analysis, however, demonstrates that there are some lee-ways In determining what the valid legal rule is, what Is its meanings and what are the facts of the case.

   @Theoretical Model of Justified Judicial Decision

7. "Judicial decision" In legal language usually means a decision disposing of the case In a concrete court. Theoretically this decision Is a "final judicial decision" which is justified by several "partial decisions".

   There are following partial decisions: of validity, of Interpretation, of evidence, of the choice of consequences. There is also a meta-decislon of sources If by these "sources" we mean arguments which either ought to be, or may be, used In practice.

   The final judicial decision Is formulated In practice as a decision of the choice of consequences, but it Is easy to demonstrate that this decision cannot be justified without justification of al the "partial" decisions.

   There are various possibilities to present the justificatory reasoning of the final judicial decision linking all'the partial decisions. It is possible to presentPage 121 them as a rather complex syllogism in which, taking premisses as granted, one makes proper subsumptions or "transformations"⁸.

8. To make patent the problems of the justification of judicial decision I will present normal formulas of the partial judicial decisions identifying the justificatory arguments, It is no place here to explain the structure of each partial decision...