Do Judicial Decision-Making and Quantum Mechanics Have Anything in Common? A Contribution to Realist Theories of Adjudication at the CJEU

Abstract

This paper offers some arguments derived from the case law of the Court of Justice of the EU (CJEU) that contribute to the realist’s description of adjudication process. It is a small part of wider research aimed ultimately at answering whether and how artificial intelligence (AI) can be used in adjudication at the CJEU. The first step in such research is to answer what really happens in the process of adjudication, or, more simply, to understand how judges decide. In order to open discussion about legal formalism and legal realism seen as descriptive theories of adjudication, I am making a parallel with science, more precisely with the world of quantum mechanics. The ways legal scholars describe judicial decision-making are, therefore, compared with the ways physicists explain the results of experiments on the behaviour of small particles.

Keywords: CJEU, theories of adjudication, legal realism, legal formalism, quantum mechanics