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NCJ Number: 51934 Find in a Library
Title: THEORY OF JUDICIAL REASONING - TOWARD A RECONSTRUCTION
Journal: KENTUCKY LAW JOURNAL  Volume:66  Issue:4  Dated:(1977/1978)  Pages:801-847
Author(s): P W GROSS
Corporate Author: University of Kentucky
College of Law
United States of America
Date Published: 1978
Page Count: 47
Sponsoring Agency: University of Kentucky
Lexington, KY 40506
Format: Article
Language: English
Country: United States of America
Annotation: A CONTEMPORARY THEORY OF JUDICIAL REASONING IS EVALUATED, AND A 'DECISIONISTIC' APPROACH TO RECONSTRUCTING THAT THEORY IS SUGGESTED.
Abstract: THE DISCUSSION TAKES AS ITS THEME THE ARGUMENT THAT CONCEPTS OF REASON INTRINSIC TO CONTEMPORARY WESTERN THOUGHT PREVENT SOLUTION OF THE OBJECTIVE REASON-VERSUS-SUBJECTIVE VALUE CHOICE PROBLEM, AND THAT THESE CONCEPTS CONSTITUTE A PRISON FROM WHICH LEGAL THEORISTS MUST ESCAPE. THREE EXPLANATORY FRAMEWORKS ON WHICH CONTEMPORARY THEORIES OF JUDICIAL REASONING REST--FORMALISM, INTUITIONISM, AND DETERMINISM--ARE EXAMINED INDIVIDUALLY AND AS THEY COMBINE TO INFLUENCE DAY-TO-DAY THOUGHT. INDIVIDUALLY THE THEORIES BASED ON THESE FRAMEWORKS EVADE THE VALUE PROBLEM; I.E., THE ISOLATION AND MINIMIZATION OF VALUE CHOICES AND THE ORDERING OF VALUES IN JUDICIAL DECISIONMAKING. ON THE GROUNDS, HOWEVER, THAT THEORIES SHOULD PROVIDE GUIDANCE TO THE JUDICIARY, LEGITIMATE THE JUDICIAL FUNCTION, AND PROVIDE INSTRUCTION FOR ADVOCATES, IT IS CONCLUDED THAT THE THEORIES WILL NOT COMBINE TO FORM AN ADEQUATE COMPOSITE THEORY. THE PROBLEM IS SAID TO LIE WITH TWO ASSUMPTIONS ABOUT MAN AND NATURE: THAT THERE IS AN UNBRIDGEABLE GULF BETWEEN REASON AND DESIRE AND THAT THE BEST WAY TO UNDERSTAND A PHENOMENON IS TO ANALYZE IT BY IDENTIFYING AND STUDYING ITS PARTS. ESCAPING FROM THE CONCEPTUAL PRISON THAT HAS RESULTED FROM THESE ASSUMPTIONS REQUIRES THE DEVELOPMENT OF AN 'ORDER OF MIND' WHICH REPRESENTS A UNITING OF PRINCIPLE AND EXPERIENCE. IN THE JUDICIAL CONTEXT, THE DECISIONISTIC PERSPECTIVE--AN APPROACH THAT FOCUSES ON THE PROBLEM OF THE JUDICIAL DECISION--MAKES THE EXPERIENCE OF THE DECIDING JUDGE THE PRIMARY DATUM OF THEORY, THUS OVERCOMING THE LACK OF RESPONSIVENESS CHARACTERISTIC OF THEORIES BASED ON AN ISOLATION OF IDEAS AND EVENTS. APPLYING THE DECISIONISTIC APPROACH WOULD MEAN THAT THE PROBLEM SITUATION OF THE DECIDING JUDGE WOULD REPLACE THE SYSTEM OF PREEXISTING PRINCIPLES AS THE BASIS OF THEORY, THAT COHERENCE IN THE LAW WOULD STEM FROM DECISION EVENTS RATHER THAN RULE SYSTEMS, AND THAT THE DUALITY OF PROCESS (OPINION FORMULATION) AND PRODUCT (THE JUDICIAL OPINION) WOULD BE TAKEN INTO ACCOUNT. THE THEORETIC INTEGRATION OF PROCESS AND PRODUCT IS THE ULTIMATE GOAL OF THE DECISIONISTIC PERSPECTIVE. THEMES FOR EXPLORING THE DECISIONISTIC PERSPECTIVE ARE SUGGESTED, AND APPLICATION OF THE PERSPECTIVE TO THE PROBLEM OF DEFINING STANDARDS OF CONSTITUTIONAL REVIEW UNDER THE EQUAL PROTECTION CLAUSE IS CONTEMPLATED. THIS APPLICATION WOULD INVOLVE CONSTRUCTING A THEORY OF FACTORS TO PROVIDE A FOUNDATION FOR STANDARDS OF CONSTITUTIONAL REVIEW. THREE STRATEGIES FOR CONSTRUCTING SUCH A THEORY ARE SUGGESTED. BASIC CONSIDERATIONS IN RECONSTRUCTING THEORY INCLUDE OBSERVING CAREFULLY PROCESSES AND PRODUCTS WITH THE EXPLICIT AIM OF CHANGING CONCEPTIONS OF THESE PHENOMENA, RECOGNIZING THE DIVERSE PERSPECTIVES OF PARTICIPANTS, AND MEDIATING UNDERLYING VALUES THROUGH DISCLOSURE AND OPEN DIALOGUE. (LKM)
Index Term(s): Decisionmaking; Judicial decisions; Judicial discretion; Judicial review; Jurisprudence; Theory
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http://www.ncjrs.gov/App/publications/abstract.aspx?ID=51934

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