To an outsider, the process by which judges make decisions may seem mysterious. But by breaking down the process into smaller components, we can demystify the process.
You have seen how judges make sense of evidence to find the facts, by drawing inferences using tacit information that they already know. And then how judges decide cases once they have found the facts. At both stages, the law imposes restrictions on the types of inferences or decisions that judges can make. To help parties and members of the community understand and scrutinise judicial decision making, judges are generally required to give reasons for their decisions.
But there is also more to judicial decision making than this straightforward picture, particularly where the law is uncertain or contested. Here, we see how bias may creep into the law, where judges may use the latitude that legal uncertainty provides to make decisions that meet their own personal preferences. This suggests that it is important for judges to be representative of wider society, a situation that has not yet been achieved in England and Wales.
Law is also quite a technical subject and there are formal requirements to promote certainty and consistency in judicial decision making. Some of these requirements are known by their old Latin names: stare decisis, ratio decidendi, and obiter dicta. These are respectively the requirement to stick with previous decisions, the principle decided in the case, and non-binding but persuasive comments by a judge.
Finally, the course examined a longstanding and controversial question in judicial decision making which is whether judges make law. We saw how the convenient fiction that judges simply declare what the law has always been may not always be true, and that the reality is a little more complicated.
This OpenLearn course is an adapted extract from the Open University course.