JUDICIAL DECISION-MAKING – BETWEEN SKEPTICISM AND FORMALISM

Abstract

After a brief review of the basic theses presented in this book, I turn to three criticisms. First, instead of primarily instructing us in how the insights of behavioral psychology could be significant for the understanding of a very specific decision-making process, such as that of judge, Spaić discusses at length the ultimate implications of those scientific findings for our understanding of the decision-making process in general. Thus, he mainly deals with the effects of the existence of legal rules on the generic characteristics of decision-making instead of shedding light on the importance of the mentioned characteristics for the specific procedure of judicial decision-making within the setting of predetermined rules. Second, Spaić fails to convincingly answer the problem of the compatibility of the normative doctrine of formalism with the radically anti-formalist theory of law. Finally, Spaić's position shares the fate of other radically non-cognitivist (realist) positions regarding judicial interpretation, insofar as he essentially challenges the normativity of the law as the most typical authoritative text by which a judge acts.