The Influence of Personal Values on Legal Judgments
| DOI | http://doi.org/10.1111/j.1467-6478.2013.00642.x |
| Published date | 01 November 2013 |
| Date | 01 November 2013 |
JOURNAL OF LAW AND SOCIETY
VOLUME 40, NUMBER 4, NOVEMBER 2013
ISSN: 0263-323X, pp. 596±623
The Influence of Personal Values on Legal Judgments
Rachel J. Cahill-O'Callaghan*
The non-legal factors that influence judicial decisions have been the
subject of extensive debate. Theoretical and empirical work has
focused on factors including political ideology, activism, attitudes, and
demographics. Personal values are related to these factors and are
central to decision making. The study described in this article trans-
lated theories and techniques from psychological research to examine
the role of personal values in judicial decision making. A novel method
of assessment of value expression in legal opinions revealed a different
pattern of values expressed in the majority and minority opinions of a
case that divided the Supreme Court. An empirical study of legal
academics extended this analysis and highlighted the significant
influence of personal values on legal decisions. The value:decision
paradigm provides a new framework to analyse judicial decision
making, judicial division, and judicial discretion and has significant
implications for judicial diversity.
INTRODUCTION
In 1972 Lord Reid stated:
Those with a taste for fairy tales seem to have thought that in some Aladdin's
cave there is hidden the Common Law in all its splendour and that on a judge's
appointment there descends on him knowledge of the magic words Open
Sesame . . . But we do not believe in fairy tales anymore.
1
596
*Cardiff Law School, Cardiff University, Museum Avenue, Cardiff CF10
3AX, Wales
cahill-ocallaghanrj@cardiff.ac.uk
The author received the 2010±2011 Cardiff Law School PhD Scholarship. She wishes to
thank her PhD supervisors Prof. Richard Moorhead, Prof. JirÆõÂPrÆibaÂnÆ , and Annette Morris
for their help and advice, Prof. Greg Maio for his advice, and James Davey for his
guidance on earlier drafts. This work was presented as a poster at the Society of Legal
Scholars Meeting 2012 and won the SLS poster prize 2012.
1 Lord Reid, `The Judge as Law Maker' (1972±1973) 12 J. of the Society of Public
Teachers of Law 22, at 22.
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School
It is now widely accepted that judges in the final courts have significant
discretion and the exercise of this judicial discretion may be influenced by
individual personal traits. Indeed, this is acknowledged by members of the
Supreme Court who recognize that although the law and the facts of the case
are critical to the outcome, in decisions that divide judicial opinion personal
factors may play a role. In a recent interview, Lord Dyson identified these
influences:
I am not surprised that there are differing opinions, that is inevitable at this
level, with the nature of the cases that we hear. They are complicated, they are
difficult. Some of them involve questions of judgment and almost philosophy,
I mean, approach to life.
2
Lord Dyson is not alone in acknowledging that `philosophy' or `approach to
life' may play a role in his decision making. Indeed, Lady Hale noted, while
giving evidence before the constitutional committee in 2011, that `everybody
comes to the task with a set of values and perspectives that may lead you to
pick different bits of the materials to reason towards an outcome.'
3
These
factors she claimed had significant importance in cases which divided
judicial opinion:
[T]he impact of background and perspective on judicial decision making is
particularly relevant in close cases where the legal principle themselves permit
more than one acceptable answer ± precisely the type of case that reaches the
Supreme Court.
4
Indeed, both commentators and appellate judiciary agree that judges in the
Supreme Court have a degree of discretion which is not determined by legal
rules and only to a certain extent by legal principles. Although there is no
consensus as to how many cases fall into this category, it may extend to the
25 per cent of Supreme Court cases in which there is dissent.
5
In such cases,
where judicial interpretation of legitimate legal reasons results in two
opposing decisions, judicial personal factors may play a role.
6
This theory is
597
2 Lor d Dys on sp ea kin g in an i nte rvi ew fo r the Guardian, a t tp: //
www .gu ard ian .c o.u k/l aw/ vid eo/ 201 1/o ct/ 25 /su pre me- cou rt- del ive r-j us tic e-
video?INTCMP=SRCH>. Lord Dyson left the Supreme Court bench in September
2012 to become Master of the Rolls.
3 Lady Hale, oral evidence before the Constitution Committee Autumn 2011, reported
in A. Paterson and C. Paterson, Guarding the guardians: towards an independant,
accountable and diverse senior judiciary (2012), at
assets/pubs/guarding-the-guardians.pdf>.
4 A. Paterson and C. Paterson, `We need to rethink how we define merit for Supreme
Court appointments' Guardian, 26 March 2012, at
mar/26/rethink-merit-supreme-court-appoinments>.
5 Indeed, from the opening of the Supreme Court in October 2009 to April 2013, the
Supreme Court decided 211 cases of which 53 cases contained one or more dissenting
opinions.
6 Legitimate legal reasons include precedent and prior statutory interpretation: B.
Leiter, `American Legal Realism' in A Companion to Philosophy of Law and Legal
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School
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