Interpreting the Rules of the Game

Abstract

After providing a brief overview of the economic theory of judicial decisions this paper presents an argument for why not only the economic theory of judicial decisions, but also the rational choice approach in general, most often fails in explaining decision-making. Work done within the paradigm of New Institutionalism is presented as a possible alternative. Within this research program judicial activity is conceptualized as the activity of "interpreting the rules of the game", i.e. the institutions that frame the economic and political interaction in society. Such a conceptualization of judicial interpretation and judicial decision-making would have to depart from rational choice modes of reasoning, and should instead focus on how human beings actually reason, learn and choose from research in cognitive science.