Importance of judicial decisions as perceived level of relevance
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| Year of publication | 2019 |
| Type | Appeared in Conference without Proceedings |
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| Description | Recently, many studies have started to employ network analysis to reveal hidden mechanisms in judicial decision-making, both in common law as well as civil law countries. Most of these studies rely on a concept of some kind of importance. It is intuitively clear that not all judicial decisions have been created equal and that some would probably be talked about more, influence future judicial decision-making more, appear in collections of decisions, student textbooks etc. while some would not. Depending on the legal system in question, past judicial decisions may have higher or lesser normative value; value that is influenced by various (usually external) factors. Even in legal systems that do not recognize the doctrine of binding precedent, past decisions enable us “to make predictions about the consequences of alternative courses of action”. Research employing analysis of citations of (references to) past judicial decision in judicial decision-making often uses rather vague concepts that are not always thoroughly explained and tend towards certain relativity. The one concept that seems to surface in many texts is “importance”. But often, authors use the word importance together with other similar words [such as (legal) relevance, (legal) significance, noteworthiness or (jurisprudential/legal) influence to authority/authoritativeness and many others, sometimes differing between them, sometimes using them as synonyms], with or without attempting some kind of explanation of these concepts, or relying purely on operationalization. I believe that especially in the context of legal systems without adhering to a doctrine of precedent this approach is without detailed theoretical framework either oversimplified, or even erroneous. In this paper I intend to show that linking the concept of importance (or any similar term used in this sense) to overt citations to past case-law is essentially a matter of the judge’s choice. Approaching this concept in this manner further allows me to show that this choice is explainable within the theoretical framework provided by theories of relevance. This paper focuses on two major approaches to relevance: linguistic pragmatism and information retrieval, and shows that the concept of relevance, as understood by theories of relevance, may serve well as an underlying explanatory framework for answering questions such as why judges tend to argue by referring to past case law even in those legal systems that do not recognize a doctrine of binding precedent. In consequence, we may approach a situation of choosing a past judicial decision to argue with in a situation where a judge is not bound by any express doctrine of binding precedent is a situation of information retrieval. |
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