JUDICIAL MAJORITARIANISM AS A ‘GROUP CHOICE‘ ISSUE

This chapter tries to identify key issues of judicial majoritarianism as a basis for discussion. Rather than promoting an ultimate master plan, it focusses on asking questions and reporting practical models, which are in use or have been proposed. The issues and model solutions set out here are extracted from a comparative survey of legal history, published in 2016. Participants in the 2017 ‘Collective Judging‘ Conference were given this chapter for inspiration; it is published here with only a few alterations.

Collegiate courts must overcome disagreement between judges in order to see a pending case decided. One can look at the decision-making process from various perspectives, for example that of collective choice theory or that of psychological group dynamics. For the lawyer, a more obvious aspect lies in the procedural rules pertaining to the collegiate decision-making exercise. While the legal aspect may not be easily separable from potential other aspects, it suggests itself as the focus for a comparative survey. There is a great variety of approaches to what seems to be the core problem of collegiate courts: How to arrive at a decision in spite of judges‘ disagreement? Insofar as judicial majority-seeking takes place in a conference of judges, the competences and procedures of such conferences are pertinent issues. Similar problems exist for tribunals of arbiters, although in terms of group psychology they may differ considerably from permanent courts since the latter can operate, at least for a while, with a stable composition of judges.

The method by which several judges‘ opinions are ‘fused‘ in deciding the case at hand, and also in shaping the law of the land, is a decisive moment in the exercise of judicial power. It deserves no less attention than the doctrine of statutory interpretation. The intellectual operations needed in this respect are not at all self-evident.

THE JUDGES‘ CONFERENCE FROM A COMPARATIVE PERSPECTIVE

From a comparative perspective, we find the majority requirement applied in two very different modes. In Anglo-American judicial systems, the case at hand is decided by the majority of opinions, the order made by the court being determined by looking at the constituent individual judges‘ end results only.