The Motivations of Individual Judges and How They Act as a Group

Abstract

States have a significant influence on the selection of judges to international courts. This raises the concern that judges will be biased in favor of their home states, a concern backed by some empirical research. To counter that danger, international courts usually sit in large and diverse panels. Scholars have argued that this gives judges only rare occasions to tip the balance in favor of their home states. The problem begins, however, when judges start forming coalitions among themselves, giving judges with national biases a practical possibility to change the result of cases. To assess the magnitude of this threat to judicial independence, the paper draws on decades of scholarship in the field of judicial behavior. By understanding how judges behave, scholars can come closer to deciphering the true impact of judicial selection to international courts on international judgments.

Evolutionary trends in the interpretation of the European Court of Human Rights under the European Convention on Human Rights

“…It is also assumed that judges will be politically unmotivated. However, in the literature we find research on the national systematic bias of judges due to certain factors: psychological (patriotic beliefs); economic (expected material reward); selection conditions (adherence to a certain ideology); cultural (education, experience gained in the country) (Dothan, 2018). At the same time, it seems that it would be possible to avoid a biased interpretation due to the careful formation of the composition of judges for consideration of cases.…”

“…W. Marshall (2002) identifies features of judicial activism. Dothan (2018) explores factors and causes of national systematic bias of judges. Evseev (2015), sharing the position of the retired ECtHR judge A. Kovler, notes that judicial activism occurs when the Court has several interpretations within its case law, but the Court goes beyond that.…”

“…However, scholars observe the formation of coalitions between biased judges through legal reasoning or as a result of leaning in favor of one's own state. "A systemic bias that does not favor a particular state, but rather is a judicial policy" among judges from the former socialist countries, in particular, is stressed as well (Dothan, 2018).…”

Inside the treaty interpreter’s mind: An experimental linguistic approach to international law

“…Scholars who have examined the national biases of judges in international courts have suggested that, just as in domestic courts, judges may be attitudinal 105 and that similar phenomena (such as small-group dynamics) 106 or patterns of leadership (such as the role of court presidents) 107 may play an important role in shaping collective decisions. 108 Thus, we recommend the following optimal configuration for interpreting in the judicial deliberation procedure: wherever possible, it should seek to support all-things-considered judgements in a genuinely psychologically safe environment of judicial deliberation in which all decisionmaking is based on the conscious weighting of values and follows a two-step process. The first step would involve identifying the type of pragmatic meaning in accordance with the pragmatic typology developed by theoretical research.…”

A Network Analysis of Judicial Cross-Citations in Europe

“…Second, the question about the determinants of cross-citations contributes to the wider debate about the role of legal and nonlegal factors in judicial decision-making (for a review of this literature, see Dothan 2018Dothan , 2172. These two groups of explanations also reflect the main positions in the general debate about the relationship between law and society.…”