Decision-making involves the dual factors of rules and judgment.  In automated systems and drafting of legislation and contracts, the judgments are encoded (fossilized) during planning.  At the opposite end, litigation is an extreme form of post-hoc decision-making.

As food for thought about the significance of focus (and role of judges), contrast the styles of U.S. judicial opinions and their French counterparts.  Most reading this will be familiar with the U.S. style.  U.S. judicial opinions, often lengthy, have a narrative form.  With a description of the facts and the case’s history in the courts (procedural posture), they will often weight factors and explain reasoning.  The decision is usually clear, but often interwoven.

French judges, performing the same function, use only a single sentence.  The legal premises, the facts and finally a verb, the result.  The sentence is long, and one is impatient for a verb, but it will always be the disposition of the case.  Puncto.  

The means, of course, that the decisions are quick to read.  They do not capture the attention of the reader for long.  Attention moves elsewhere, to how the logic and decision fit in a framework.  This is characteristic of legal thought in civil code jurisdictions.  Thought flows more rapidly across the entire framework.  It feels less local than in common law jurisdictions.  More connections are made.  For an excellent, and critical, intro to French judicial opinions, see Michael Well’s piece in the Yale Journal of International Law.

Advertisements