3.2 Sociological factors determining decision-making

Sociological factors also influence the decision-making of judges. Such factors have been widely studied by representatives of American realism. For example, B. Cardozo argued that the final form of a decision is given by the judge's life experience: a judge's understanding of the canons of justice and morality, his or her studies of the social sciences, sometimes intuition, conjecture, even ignorance or prejudice. After assessing the correlation between the social connection between persons and a more favorable decision for a close person, the principles of judicial impartiality were established. Art. 6(1) of the European Convention on Human Rights states that in the determination of his or her civil rights and obligations or of any criminal charge against him or her, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR). For example, the Constitutional Court of the Republic of Lithuania has clarified that a person's constitutional right to have his or her case examined by an impartial court also means that a person's case may not be heard by a judge whose impartiality is in doubt. The judge hearing the case must be neutral. The impartiality of the judiciary, like the independence of the judiciary, is an essential guarantee of human rights and freedoms, a prerequisite for a fair trial, and thus a requirement for confidence in the judiciary. Ruling of 12 February 2001, no. 14-445 of the Constitutional Court of the Republic of Lithuania. In summary, the absence of influence of certain social relations in the decision-making of judges is ensured with the help of the institute of removal of judges.

However, the decision-making of judges is also determined by other social factors, which, due to certain circumstances, cannot be measured and regulated by law. People differ from each other by gender, age, education, origin, and religion, and these are the factors that may determine their decisions. For example, in cases of gender discrimination or equality, female judges tend to take a more liberal position. LJ Siegel, JL Worrall, Essentials of criminal justice (Wadsworth 2017). Female judges also tend to punish those who have committed violent sexual offences more severely than their counterparts. K O'Connor, Gender and Women's Leadership: A Reference Handbook. (Vol 2, SAGE Publications Inc 2010). Besides, each judge is a part of his or her nation, and all judges in a certain society live in the same environment, which affects each of them almost identically; thus, the decisions of judges are not determined by some mystical individualities of each case but can be predicted on the basis of general social regularities. Although, as in cases of influence of psychological factors, judges are often unaware of the social laws that influence decision-making, and even if they are aware, they often do not recognize that influence, such laws do exist and may even be predictable. In principle, the law gives the judge the freedom to choose one of several ways to resolve the case, and the judge chooses a particular option under the influence of social factors.

Traditionally, the exercise of discretion is understood as a highly subjective decision driven by largely unexplained factors: success, emotion, or even whim. From a social point of view, decision-making can also be explained by less mystical actions. Decision-makers rely on their consciousness, presenting different conclusions depending on the social situation. J Gumbis, `Teisinй diskrecija: teorinis poziuris' (2004) 52 Teisй 56. As mentioned, the social factors that determine the decision-making of judges form certain social laws, which, due to their low attractiveness, are not widely analysed in legal doctrine. Indirect empirical research shows that legal training or judicial experience does not produce a higher expert judgment. One of the reasons why judges do not make better decisions than ordinary subjects is that judging is poorly based on the environment - judges do not receive feedback on the quality of the decisions they make, so judges do not improve their decision-making skills. V Tumonis, et al, `Judicial Decision - Making from an Empirical Perspective' (2013) 6 (1) Baltic Journal of Law & Politics 158. As has been emphasized in this paper, in hard cases, short-sighted justice, complete objectivity, and formal application of rules are not the aspirations to be followed. In such cases, the public expects that judges will not formally apply the letter of the law but will seek justice and individualize the dispute. With this in mind, there is a need to examine the social factors that may influence a judges decision-making. This would promote greater public confidence in the judiciary since social factors form laws, the examination of which in cases requiring the discretion of a judge would form tendencies of judgments made, and that would bring legal certainty. In this way, judges would also have a better understanding of themselves and the functioning of the decision-making mechanism and would be able to assess the impact of certain factors that may have had an influence on the decision-making process.

4. The dichotomy of hard and easy cases and artificial intelligence

Technology is evolving so fast that it has acquired the name of the Fourth Industrial Revolution. K Schwab, The Fourth Industrial Revolution (Crown Publishing Group 2017). In Estonia, a robot-judge project is currently being developed to resolve small (up to € 7,000) civil disputes arising from contracts. E Niiler, `Can Al Be a Fair Judge in Court? Estonia Thinks So' (WIRED, 24 March 2019) <https://www. wired.com/story/can-ai-be-fair-judge-court-estonia-thinks-so/> accessed 5 October 2021. It is believed that court systems will be able to concentrate on complex cases, and cases will be resolved more efficiently and expeditiously. It is likely that the number of countries that will follow Estonia's example will increase rapidly, especially considering that the European Ethical Charter of the use of AI in judicial systems and their environment encourages the use of artificial intelligence in online dispute resolution. CEPEJ European Ethical Charter on the use of artificial intelligence in judicial systems and their environment 2018. R. Susskind, the world's most-cited author on the future of legal services, discusses the possibility that the decision-making processes of judges will be entirely replaced by artificial intelligence eventually. R Susskind, Online Courts and the Future of Justice (Oxford University Press 2019). Accordingly, an analysis of the judicial decision-making mechanism is required not only to assist in the development of technology but also to assess which cases could potentially be delegated to technological solutions.

Cases that can be and even should be resolved using either syllogisms or by applying precedents - referred to in this essay as easy cases - will be the first ones assigned to artificial intelligence to resolve. Lawyers must be the first ones to submit their insights; otherwise, we risk putting the rule of law in jeopardy. Technology is evolving very rapidly, and we are on the brink of disaster if we do not react quickly. A method should be proposed to accommodate as many cases as possible into legal syllogisms and precedents. Otherwise, as mentioned before, cases in which a claim corresponds to a certain amount of money will prima facie be deemed to be easy cases. The first examples could be licensing, court orders, consumer disputes, etc. This way, hard cases - those that usually have a particular impact on legal systems - would remain at the discretion of human judges rather than robot judges, at least until the development of technology reaches a certain level, when we can confidently delegate even cases of this scale to an AI.

Conclusions

When judges make decisions in easy cases, the ways of resolving cases proposed by legal positivism should be deemed to be a priority. The use of syllogisms in easy cases helps to ensure compliance with the principles of efficiency and effectiveness, respect for the principle of separation of powers and an authoritative legislature, and minimum legal stability. This also ensures legal clarity and predictability. The application of analogy (precedent) in easy cases is in line with the principles of procedural economy and efficiency, thus reducing the workload of courts not only in the first instance but also in courts of appeal and cassation, which means that courts have more time to resolve hard cases. It also encourages less litigation, and the consistent application of precedents helps to ensure the duty of courts to develop uniform practice.

When judges make decisions in hard cases, where they have the discretion to choose how a certain case is decided, they are influenced by various sociological and psychological factors. A broader examination of these factors without discrediting judges would not only help judges to critically assess the factors that affected them in the process of making a judgment but would also be beneficial to society by identifying some systematic influence of factors, which would lead to greater predictability of decisions. The methods of resolving cases proposed by legal positivism are not sufficient when resolving hard cases, as such cases require more than just full objectivity and formal application of legal norms. Empirical research shows that judges are influenced by such psychological factors as overconfidence in intuition, gambler's fallacy, anchor effect, and social factors such as close relationship with the party to the case or/and gender. More in-depth research on the performance of judges should be encouraged, as this would allow judges to assess the impact of factors that affect them on their decisions and give the public a better understanding of how decisions are made, which would foster greater trust in the judiciary.

Given the current state of technological development, lawyers should be encouraged to accommodate as many cases as possible - such as consumer disputes or court orders - into legal syllogisms and transfer precedents into certain formulas. This way, only easy cases will be delegated to AI, whereas hard cases will remain in the competence of human judges for some time yet.

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