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Introduction
Contemporary research in judicial politics has unveiled several of the underlying
processes that significantly affect judicial decision making. Public law scholars have
substantially contributed to our knowledge of judicial behavior in such areas as agenda setting
(Perry 1991), strategic behavior (Murphy 1964; Maltzman and Wahlbeck 1996; Epstein and
Knight 1998), ideological or preference voting (Schubert 1964, 1965, 1974; Segal and Spaeth
1993, 2002) and the like. However, these studies focus exclusively on the U.S. courts, and
consequently the applicability of the findings to the behavior of courts within a larger
comparative context is unclear. With the global expansion of the “judicialization of politics”
(Tate and Vallinder 1995),
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scholars have steadily become more responsive to the need of the
public law sub-field to increase our understanding of legal systems via comparative research.
This study seeks to apply judicial decision-making theories developed in the U.S. context to the
Appellate Division of the Supreme Court of South Africa. Specifically, an integrated model of
decision making derived from both the legal and extralegal approaches to judicial decision-
making is extended to a single issue area, the death penalty, in order to ascertain whether or not
judges do indeed rely upon factors other than simply the facts and the law in determining legal
outcomes.
Models of Judicial Behavior
One of the most enduring questions posed by scholars of judicial politics concerns the
process by which judges construct their decisions. Until the early 20
th
century, legal scholars
embraced a mechanical jurisprudence approach to law. This legal model of decision making is
based upon the notion that judicial decisions are solely derived by applying the law to the facts of
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Tate and Vallinder (1995, 14) refer to the global expansion of judicial power, or the “judicialization of
politics” as “the infusion of judicial decision-making and of court-like procedures into political arenas
where they did not previously reside.”
Convention