Judicial Decision Making

Normative Legal Judicial Decision Making (The Legal Model)

Normative approaches to JDM focus on how law ought to be interpreted. Often emphasis is placed on purely legal factors, such as the language of the law passed by the legislature, the wording of constitutions or founding documents, and, in common law systems, precedent (previous cases decided by courts). The focus on normative jurisprudence is not what judges personally decide but what the law demands. Normative jurisprudence tends to think of the law as a puzzle to be unlocked and the correct answer revealed, not a malleable concept with many possible arguments and answers. A normative legal approach can be seen in the classic writings of William Blackstone, Learned Hand, and the founding fathers of the United States (especially James Madison and Alexander Hamilton), who were heavily influenced by enlightenment thinkers such as Thomas Hobbes, John Locke, and Baron de Montesquieu.

Although the modern study of JDM has moved from a normative to a positivist approach, many scholars continue to recognize the importance of legal factors in explaining judicial decisions. These studies tend to focus on the importance of case facts on the outcomes of various types of cases. However, while it is clear that “the law” matters for some case outcomes, it is also clear that many judicial decisions are affected by nonnormative considerations. Indeed, it may be most useful to consider the normative as more prescriptive than descriptive. That is, it may explain what we think judges ought to do (more factors they should take into account when they decide cases), but it is less useful is describing what actually occurs (what factors actually matter to judges).

The level of court being studied also matters. For example, in trial courts, where judges have to rule on evidentiary matters, charge the jurors, and so on, it is likely that the normative/legal model is generally applicable. These judges are constrained by appellate judges above them, and if they were to make rulings inconsistent with the facts and the law, they [Page 1367]would likely be overruled. However, for judges in courts of last resort, the situation is quite different. First, these judges have no higher court that can overrule their decision. Second, these courts tend to hear cases that are much more difficult. By difficult, we mean that reasonable people can disagree as to the proper outcome. If the facts and the law could support both opposing outcomes, then it is not hard to see how judges can be constrained in this way.

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