Alf Ross”™ theory of legal validity in the context of current research on the judicial decision-making
Abstract
The purpose of this article is twofold. Firstly, it presents basic assumptions of Alf Ross”™ theory of legal validity. Secondly, it examines validity of Ross”™ theory in context of current psychological research into the judicial decision-making. For Ross the utterance concerning valid legal rule is a prediction to the effect that the judge will use the rule as the basis for his future decisions. Such predictions are possible on the assumption of objective criterion motivating the judge”™s actions, which for Ross is a normative ideology shared by the judges. Such ideology is based on the sources of law in the proper hierarchy. Individual factors, which cannot form a basis for strong predictions are deliberately excluded from Ross”™ theory. Although he was fully aware of the complexity of human decision-making process, yet had to ignore that aspect of human motivation, which would be useless as a basis for predictions. The question is whether a theory based on fully objective factors is in accordance with current research in the field of judicial decision-making. The article analyses some of the current researches in order to establish whether they give a clear image of the process of judging, and how this image might affect Ross”™ theory of validity. As it is stated no such clear image emerges from the current empirical data. For this reason, the allegation that Ross”™ theory is empirically outdated cannot be sustained. Moreover, even if empirical data indicate that subjective criteria play a significant part in judge”™s decisions, they will not undermine Ross”™ predictive theory of legal validity.
