Judicial Authority and Styles of Reasoning: Self-Presentation between Legalism and Deliberation
Forthcoming in: ESTABLISHING JUDICIAL AUTHORITY IN INTERNATIONAL ECONOMIC LAW (Joanna Jemielniak, Laura Nielsen & Henrik Palmer Olsen eds, Cambridge University Press 2016).
Amsterdam Center for International Law No. 2016-02
Postnational Rulemaking Working Paper No. 2016-01
24 Pages Posted: 21 Jan 2016 Last revised: 4 Feb 2016
Date Written: January 20, 2016
The present contribution develops an understanding of international judicial reasoning as a technique of impression management: Judges’ reasoning, it suggests, is geared towards leaving an impression with audiences. Anxiety, in turn, arises when judges find it important to convey a certain impression but are sceptical about their capacity to do so. Such a perspective on judicial reasoning refines and critiques two other well-received arguments. First, the notion of legalism suggests with a sociological leaning that judges turn to formalism when they face or anticipate critique. However, the appeal of formalism as a place of refuge actually depends on the predilection of audiences. Second, the more decidedly normative approach of a discourse-theoretical reconstruction of judicial reasoning suggests that audiences might play a critical and possibly legitimating role. However, if judges are to a significant extent motivated by appeasing an audience, no meaningful deliberation takes place. Deliberation is undercut by the dynamics of judges’ social anxiety. The present contribution argues that a social-psychological perspective on judicial reasoning — as it emerges from self-presentation theory — adds important considerations for an understanding of judicial reasoning. This work thus seeks to contribute to the groundwork of emerging literature that zooms in on international judicial reasoning. As part of a general body of research that focuses on judicial behaviour, judicial reasoning has so far been placed between structural constraints and policy objectives. That view is too limited. I submit that future work will gain from looking at audiences and from exploring further which audiences are the most influential.
Keywords: Judicial Authority, Styles of Reasoning, Legalims, Fromalism, Deliberation, Shklar, Habermas, Self-Presentation, Judicial Behaviour, Social Psychology
JEL Classification: K33
Suggested Citation: Suggested Citation