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

Forthcoming, Martin Belov, (ed.) The Role of Courts in Contemporary Legal Orders, Eleven, 2019

Presented at the International Conference “III ‘Erasmus’ Legal Science Week”, held at the University of Sofia on 29-30 March 2019

10 Pages Posted: 9 May 2019

See all articles by Tamara Capeta

Tamara Capeta

University of Zagreb - Faculty of Law

Date Written: March 20, 2019

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

Suggested Citation

Capeta, Tamara, Do Judicial Decision-Making and Quantum Mechanics Have Anything in Common? A Contribution to Realist Theories of Adjudication at the CJEU (March 20, 2019). Presented at the International Conference “III ‘Erasmus’ Legal Science Week”, held at the University of Sofia on 29-30 March 2019. Available at SSRN: https://ssrn.com/abstract=3370280 or http://dx.doi.org/10.2139/ssrn.3370280

Tamara Capeta (Contact Author)

University of Zagreb - Faculty of Law ( email )

Croatia

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