22The percentage of positive decisions (i.e. in favour of the parole application) at the beginning of each session was estimated to be approximately 65%. With each subsequent decline, it gradually dropped to nearly 0%, but after the break it returned to around 65%. No legally relevant factors were found that would justify this amendment from a judicial point of view. See footnote 14 above (Danzinger et al. [2011] 6889). The second example consists of two experimental analyses of judicial decisions. The first was conducted by Danzinger, Levav, and Avnaim-Pesso, who reviewed more than a thousand court decisions on parole applications in Israel.21 The results showed the increasing tendency to decide „in favor of the status quo” (i.e., reject the parole application) with each subsequent decision. However, this trend came to an abrupt end after meal breaks during court hearings.22 Research has supported the thesis that legally irrelevant factors such as rest and food can decisively influence the judge`s decision. The second study was conducted by Englich, Mussweiler and Strack and focused on the phenomenon of anchoring.2324 The participants in their experiment, all experienced German judges, were invited, among other things, to make a criminal decision in an artificial criminal case that had been submitted.
Before rendering their verdict, however, they had to roll a pair of dice designed to always show the same numbers. The judges were unaware that the dice were loaded, believing that the numbers had been determined at random. However, the results showed that their decisions were influenced by the numbers they saw, although they were convinced that rolling the dice had no effect on their decisions. It is important to note that the authors of both experiments shared the common view that factors such as mental state, which favours a certain tendency to the sense of judgment, or the influence of psychological anchoring should not influence legal decisions.25 24In this case, the anchoring effect was generated by numbers that acted as anchoring values (see T. Mussweiler & F. Strack, „Comparing is believing: A selective accessibility model of judgemental anchoring”, (1999) European review of social psychology, 10(1) 135-167). In particular, numerical cases of the anchoring phenomenon have also been proven in case of damage – see, for example, G. Pogarsky & L.
Babcock, „Damage caps, motivated anchoring, and bargaining impasse,” (2001) The Journal of Legal Studies, 30(1) , 143–159 and C. Guthrie, J.J. Rachlinski & A.J. Wistrich, „Judging by Heuristic – Cognitive Illusions in Judicial Decision Making,” (2002) Judicature, 86(1) 44–50. From a psychological point of view, all the above-mentioned cases concern lawyers drawing conclusions from the premises of the legal field. From a normative point of view, however, only Wagner`s model can be described as „legally valid”. Indeed, only Wagner`s conception contains a normative legal hypothesis – the „irrefutability” of marriage is broken, which follows directly from the relevant legal provisions. These last experimental examples do not contain such a legal standard.
Wagner`s model therefore not only describes the heuristic approach to legal decision-making, but also „matches” the judicial decision-making process with the normative prerequisites of German civil law. Although these latter experimental examples do not provide considerations of legal norms, there is no doubt that a legal decision influenced by random numbers or the „mood” of judges cannot be considered correct. Conversely, such bias could and should be regarded as a circumstance justifying the annulment of such a judgment by a higher court. However, despite the differences mentioned above, all the cases presented have considerable similarities. First, in each of them, reflections on the problem of thought are presented from the perspective of psychological insights of non-analytical human decision-making processes. In other words, all of these examples are based on psychological concepts associated with intuition – such as heuristics or cognitive biases.26 Second, the actual justification provided by lawyers in all cases was constructed in a legally appropriate manner, without any idea of the legally irrelevant factors taken into account. This means that the justification of judgments was based on normative legal norms of argumentation, while the actual decision-making process was influenced by intuitive biases. It is therefore also possible for German judges to make divorce decisions on the basis of premises different from those set out in their reasoning – although such a thesis requires an experimental investigation. Despite this idea, Wagner`s model not only uses the psychological explanation of legal reasoning, but also corresponds to normative assumptions derived from German legal regulations. The other two examples reveal mental mechanisms of judicial decision-making that cannot form the basis of judgment because they violate the law. Of course, the length of detention should not be determined by rolling the dice and probation granted or denied according to the mood of the judge. The consistency with normative standards of the previous definition of justification must therefore be understood as excluding processes that cannot produce legally valid decisions.27 107The exclusive use of two elements – legal dispute and case law – may support the criticism that the proposed definition in Section 2 covers a very wide range of cases.
However, this argument does not seem feasible. First, not all jurisprudential disputes can be an example of a difficult case, as most of these controversies are resolved by higher courts. Few people, therefore, cause the real problem of indecision. This also seems to apply to theoretical legal arguments, since, according to the body of legal knowledge, part of the dispute is due to the ignorance of the participants of the latter, rather than to a genuine question of indeterminacy. The maxim goes back at least to 1837, when a judge ruling in favor of a parent against the maintenance of his children said, „We have heard that difficult cases make a bad law.” [3] The judge`s wording suggests that the sentence was not new at the time. 29In addition, some traditional legal theories can be classified in the definition presented as emphasizing or diminishing, emphasizing or diminishing the role of reasoning in the legal field. For example, lawyers conceptualize the actions of judges and other jurists in difficult cases, often focusing on the premises and reasoning processes by which lawyers make their decisions (see H. Hart, „The concept of law” (1961) 107 [hereafter Hart (1961)], R. Dworkin, „Taking Rights Serious” (1978) 82, 280 [hereinafter: Dworkin (1978)], R.
Dworkin, `Law`s Empire` (1986) 72 [`Dworkin (1986)]). Although it seems to be rooted in the nature of legal affairs, some theories may denigrate the role of such thinking in difficult cases (see Hutcheson (1928) 274 et seq.; and Hage et al. (1993) 123-125). „If the case is difficult [difficult in the terminology presented] … After digging through all the material available on my order and thinking about it properly, I let my imagination play and think about the cause, waiting for the feeling, the intuition – that intuitive flash of inspiration that makes the abrupt link between the question and the decision, and to the point where the path is darkest for the judge`s feet. throws his light on the way. 61 68It is interesting to note that besides Hutcheson, there are many recent examples of misconceptions about intuition and insight in legal theory.