earticle

영어

Classical legality tried all its might to keep law safe from politics; adjudication was either cast in declaratory terms or seen as strict application of rules; the judge was depicted as a featureless shadow of the law. General acknowledgment of the “open texture” in the first half of the twentieth century threw light on the dark box of judicial decision-making; the rise of legal realism initiated an unprecedented open discussion over the long obscured fact that judges, besides determining facts and interpreting laws, do make public policy choices. In the mid 20th century, political jurisprudence, including behavioralism and neo-institutionalism, offered a unique and revolutionary perspective by presenting judicial decision-making not as an autonomous organism but an integral part of the larger political process. Behavioralism saw judicial decision-making as a conscious and deliberate policy choice judges make in accordance with their partisan allegiance. New insitutionalism, however, criticized the exclusion of law and institutions in the behavioralist analysis and conceptualized the judicial decision-making process as a dynamic interplay of the legal doctrines, the judge and the institutions. Through a critical investigation into the academic terrain of judicial decision- making, its unfolding development and internal contentions, this thesis aims to explore the role of the American judge within the judicial decision-making scenario. The main body of this thesis consists of three chapters. Chapter One critically reviews the traditional jurisprudence, including the classical common law jurisprudence and the legal positivism that characterized the judge as either the detached interpreter or solely devoted to the scientific application of law. The rest of this chapter is devoted to a critical examination of American legal realism’s deconstruction of the mechanical, faceless, rule-bound figure of a judge. Against this historical backdrop, Chapter Two looks into the mid 20th century inroads made by political jurisprudence and the attitudinal model that swept through the academic terrain of judicial decision-making. This position, later known as the attitudinal model, was to be vehemently criticized by neo-institutionalist scholars as simplistic in its understanding of human behavior, reductionist in its erasure of legal doctrines and institutional restraints, and utilitarian in its notion of human rationality and autonomy. Chapter Three tries to probe into the theoretical core of the three branches of new institutionalism and their internal debates, building upon the eclectic, path- dependent, and multi-dimensional historical institutional paradigm to explore the dynamic and mutually constitutive interplay of legal doctrines, the judge and the institutions.