From Classical Naturalism To Neo-institutionalism

Classical legality tried all its might to keep law safe from politics; adjudication waseither cast in declaratory terms or seen as strict application of rules; the judge wasdepicted as a featureless shadow of the law. General acknowledgment of the “opentexture” in the first half of the twentieth century threw light on the dark box of judicialdecision-making; the rise of legal realism initiated an unprecedented open discussionover the long obscured fact that judges, besides determining facts and interpretinglaws, do make public policy choices. In the mid20th century, political jurisprudence,including behavioralism and neo-institutionalism, offered a unique and revolutionaryperspective by presenting judicial decision-making not as an autonomous organismbut an integral part of the larger political process. Behavioralism saw judicialdecision-making as a conscious and deliberate policy choice judges make inaccordance with their partisan allegiance. New insitutionalism, however, criticized theexclusion of law and institutions in the behavioralist analysis and conceptualized thejudicial decision-making process as a dynamic interplay of the legal doctrines, thejudge and the institutions. Through a critical investigation into the academic terrain ofjudicial decision-making, its unfolding development and internal contentions, thisthesis aims to explore the role of the American judge within the judicialdecision-making scenario.The main body of this thesis consists of three chapters. Chapter One critically reviewsthe traditional jurisprudence, including the classical common law jurisprudence andthe legal positivism that characterized the judge as either the detached interpreter orsolely devoted to the scientific application of law. The rest of this chapter is devotedto a critical examination of American legal realism s deconstruction of the mechanical,faceless, rule-bound figure of a judge. Against this historical backdrop, Chapter Twolooks into the mid20th century inroads made by political jurisprudence and theattitudinal model that swept through the academic terrain of judicial decision-making. This position, later known as the attitudinal model, was to be vehemently criticized byneo-institutionalist scholars as simplistic in its understanding of human behavior,reductionist in its erasure of legal doctrines and institutional restraints, and utilitarianin its notion of human rationality and autonomy. Chapter Three tries to probe into thetheoretical core of the three branches of new institutionalism and their internal debates,building upon the eclectic, path-dependent, and multi-dimensional historicalinstitutional paradigm to explore the dynamic and mutually constitutive interplay oflegal doctrines, the judge and the institutions.