Determinants of judicial decisionmaking : the state of the art and the czech perspective

• Authors: Hubert Smekal , Ladislav Vyhnánek
• Languages of publication: EN

Abstracts

EN

This article aims to answer a key question in modern jurisprudence – which factors influence judicial decision-making? It starts with an introduction breaking the question down into two contrasting possibilities. Is judicial decision-making determined purely by law or can we trace the influence of various extralegal factors? In order to answer these questions, the article provides an overview of the current state of the art in international (mainly US) literature and its historical development. Based on an interpretation of the current state of the art, it reaches an intermediate conclusion: that especially in hard cases, there is (practically speaking) considerable space for judicial discretion, and that, as a matter of fact, decisions in these cases are influenced by various extra-legal factors. Given that most of the literature is of US origin, the article further discusses the possibility of “proving” this in Czech conditions. In this regard, the article arrives at a position of moderate methodological skepticism – i.e. that for many reasons, it is hard to do so, even though the aforementioned conclusions should – in principle – be generally applicable.

Keywords

EN

judge; decision-making; ideology; extra-legal factors; interpretation; discretion; courts; judicial legitimacy

Discipline

• LAW_&_ADMINISTRATION: LAW & ADMINISTRATION

• Publisher: Institute of State and Law, Czech Academy of Sciences
• Journal: The Lawyer Quarterly
• Year: 2020
• Volume: 10
• Issue: 2
• Pages: 106-129
• Document type: ARTICLE

Contributors

author

Hubert  Smekal

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author

Ladislav  Vyhnánek

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