Importance of judicial decisions as a perceived level of relevance

SMEJKALOVÁ, Terezie. Importance of judicial decisions as a perceived level of relevance. Utrecht Law Review. 2020, vol. 16, No 1, p. 39-56. ISSN 1871-515X. Available from: https://dx.doi.org/10.36633/ulr.504.

Basic information

• Original name: Importance of judicial decisions as a perceived level of relevance
• Authors: SMEJKALOVÁ, Terezie (203 Czech Republic, guarantor, belonging to the institution).
• Edition: Utrecht Law Review, 2020, 1871-515X.

Other information

• Original language: English
• Type of outcome: Article in a journal
• Field of Study: 50501 Law
• Country of publisher: Netherlands
• Confidentiality degree: is not subject to a state or trade secret
• WWW: Open access časopisu
• RIV identification code: RIV/00216224:14220/20:00114150
• Organization unit: Faculty of Law
• Doi: http://dx.doi.org/10.36633/ulr.504
• UT WoS: 000536839500004
• Keywords in English: precedent; normativity of judicial decision making; case-law; relevance; optimal relevance; network analysis; civil law systems
• Tags: rivok
• Tags: International impact, Reviewed

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.

Links

• GA17-20645S, research and development project: Name: Exaktní hodnocení aplikační relevance judikatury

Investor: Czech Science Foundation