Importance of judicial decisions as a perceived level of relevance

Terezie Smejkalová

doi:10.36633/ulr.504

Abstract

Studies employing network analysis to reveal hidden mechanisms in judicial decision making, both in common law as well as civil law countries often use rather vague concepts of ‘importance’ of judicial decisions, concepts that are not always thoroughly explained, tend towards certain relativity and are used together with other similar words [(legal) relevance, (legal) significance…], with or without attempting explanation of these concepts, or relying purely on operationalization. This paper argues that in the context of legal systems that do not recognize a doctrine of precedent this approach is either oversimplified, or even erroneous. It further shows that ‘importance’ of past case-law is essentially a matter of the judge’s choice. Approaching this concept in this manner 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 optimal relevance, as understood by theories of relevance, may serve well as an underlying explanatory framework for answering the question of 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.

Highlights

We have been witnessing a splurge in analyses of judicial practice in continental legal systems,[1] based on citations of judicial decisions in judicial decisions.These analyses usually follow similar citation analyses coming from precedential legal systems and they often employ similar methods and are often built around the same interpretation of the meaning of a citation of a judicial decision in another judicial decision.[2]Continental legal systems are typical of their reliance on written laws where the judges are not bound by any doctrine of precedent that wouldUtrecht Law Review, 2020, Volume 16(1)make not deferring to precedents illegal.[3]
This paper focuses on two major approaches to relevance: linguistic pragmatism and information retrieval, and shows that the concept of optimal relevance, as understood by theories of relevance, may serve well as an underlying explanatory framework for answering the question of 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
Non-precedential legal systems are still quite varied in their approach to judicial decisionmaking’s influence, ranging from express prohibition in France to argumentative practice in German or Czech apex courts.[4]. Our considerations follow those studies that ask the questions such as why do judges choose to refer to past decisions in their own decision making if they do not have to; how do they choose what decisions to refer to, if strictly speaking, there are no precedential decisions; and what influences the value of a certain past decision that makes it to be referred to more likely than others as there have been attempts to explain this value, often in very theoretical terms, inferring the normative role of case-law from general principles of a given legal system,[5] or drawing at qualitative analyses and unstructured observations of what the judges themselves express in their decisions.[6]

Summary

Introduction

We have been witnessing a splurge in analyses of judicial practice in continental legal systems,[1] based on citations of judicial decisions in judicial decisions. For the purpose of their study they understand importance of a judicial decision as something that is indicated by a judge by referring to the decision and they sought to indicate a degree to which a past judicial decision is thought to be important for resolving future cases Fowler and his collaborators basically developed a way to determine which decisions are most relevant[26] to other courts in a given legal system by using network analysis that evaluates the number and ‘quality’ of citations between individual decisions.[27] They have attempted to overcome difficulties stemming from the fact that a citation of a past judicial decision may carry different meanings (calling upon authority, discuss or question previous rulings, distinguishing, overruling, to cite for procedural reasons etc.28) by introducing differentiating between hubs and authorities, allowing them to differ between two types of ‘importance.’ Their findings show that there truly is a group of decisions that dominate the network, while most cases do not get cited at all, or rarely.[29]. I believe, that despite notable similarities between systems of horizontal precedent (precedents may be used and deferred to, but it is not a binding rule to do so and the judge is more free to consider the persuasiveness and other qualities of such a decision) and systems where no rule of precedent is present (judges are not overtly expected to defer to any precedent and any ideas about the correct practice regarding the use of past judicial decision in future judicial decision making are formed by practice and custom of a kind) the very fact whether in other circumstances the legal system does or does not recognize the binding vertical precedent is of significance when judging the nature of a system – and the meaning of a citation of past judicial decision for the purposes of citation analysis

Theories of relevance

Choosing the optimally relevant judicial decision

Referring to past decisions as a choice of optimal relevance

Findings

Conclusion