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How Judges Use Weapons of Influence: The Social Psychology of Courts

Published online by Cambridge University Press:  05 March 2013

Guy Davidov  and
Maayan Davidov
Guy Davidov*
Affiliation:
Guy Davidov is from the Faculty of Law, Maayan Davidov is from the Paul Baerwald School of Social Work and Social Welfare, both at the Hebrew University of Jerusalem.
Maayan Davidov*
Affiliation:
Guy Davidov is from the Faculty of Law, Maayan Davidov is from the Paul Baerwald School of Social Work and Social Welfare, both at the Hebrew University of Jerusalem.
*
Please address correspondence to[email protected] or [email protected].
Please address correspondence to[email protected] or [email protected].
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Abstract

Research on compliance has shown that people can be induced to comply with various requests by using techniques that capitalise on the human tendencies to act consistently and to reciprocate. Thus far this line of research has been applied to interactions between individuals, not to relations between institutions. We argue, however, that similar techniques are applied by courts vis-à-vis the government, the legislature and the public at large, when courts try to secure legitimacy and acceptance of their decisions. We discuss a number of known influence techniques – including ‘foot in the door’, ‘low-balling’, ‘giving a reputation to uphold’ and ‘door in the face’ – and provide examples from Israeli case law of the use of such techniques by courts. This analysis offers new insights that can further the understanding of judicial decision-making processes.

Keywords

influence techniquesjudicial decision-makingstrategic decisionsfoot in the doordoor in the face.
Type
Articles
Information
Israel Law Review , Volume 46 , Issue 1 , March 2013 , pp. 7 - 24
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2013

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References

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3 Alexander Hamilton, ‘The Federalist No 78’, http://thomas.loc.gov/home/histdox/fed_78.html.

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5 In their judgments, judges often rely on previous decisions of the same court, on academic writings, and (more so in Israel and elsewhere than in the US) on the law in other countries. This suggests the use of two other weapons of influence: authority and social proof. However, we limit ourselves in this article to discussing the less obvious methods of influence employed by courts.

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12 Cialdini (n 1) 64–67.

13 Freedman and Fraser (n 10) 201.

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24 Marbury v Madison 5 US 137 (Sup Ct 1803).

25 HCJ 366/03 Commitment for Peace and Social Justice v Minister of Finance 2005 PD 60(3) 464.

26 HCJ 10662/04 Salah Hassan v The National Insurance Institute, 28 February 2012.

27 It is plausible that chief justices are more attuned to political considerations and to the preservation of institutional capital than are other judges and, as a result, use influence techniques more frequently. However, this suggestion is only speculative, and awaits future examination.

28 HCJ 4885/03 Organization of Poultry Breeders v The Government of Israel 2004 PD 59(2) 14.

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33 One obvious example concerns decisions that prevent the appointment to ministerial and other positions of people who have been involved in illegal actions: see, eg, HCJ 6163/92 Eisenberg v Minister of Construction and Housing 1993 PD 47(2) 229.

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43 See, for example, Cialdini, Robert B and Goldstein, Noah J, ‘Social Influence: Compliance and Conformity’ (2004) 55 Annual Review of Psychology 591, 600–02CrossRefGoogle ScholarPubMed.

44 Cialdini (n 1) 40.

45 Cialdini and others (n 42) Experiments 1 and 2.

46 There is a somewhat similar method of influence, known as the ‘that's not all’ technique (Burger, Jerry M, ‘Increasing Compliance by Improving the Deal: The That's-Not-All Technique’ (1986) 51 Journal of Personality and Social Psychology 277CrossRefGoogle Scholar). Here an initial inflated offer/request is made and soon after, before the target has had an opportunity to respond, the deal is sweetened by improving the first offer (reducing its cost or increasing its benefits). This is different from the door-in-the-face technique in that no explicit rejection of the first request is made. Similar to this technique, however, the effectiveness of the that's-not-all strategy appears to be in part because of a desire to reciprocate the requester's concession, and also because of the contrast between the two offers which increases the perceived attractiveness of the second one (ibid). Interestingly, the technique has been shown to backfire if the initial offer is too extreme (see Burger, Jerry M and others, ‘The Effects of Initial Request Size on Compliance: More About the That's-Not-All Technique’ (1999) 21 Basic and Applied Social Psychology 243CrossRefGoogle Scholar).

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48 See, eg, RLC (Nazareth) 3-335/57 Tife'ret International Trade v David El'azar (6 July 1997); RLC (Tel-Aviv) 140329/99 Shnar Communications Ltd v Ayelet Oron (25 April 1999).

49 NLC 164/99 Frumer v Redguard 1999 PDA 34 294.

50 Menachem Goldberg, ‘Contracts Must Be Honored?’, Globes, 22 August 2000, http://www.globes.co.il/news/article.aspx?did=387924; Haim Bior, ‘Chamber of Commerce Deputy Chair: The Labour Court Limits the Freedom to Manage’, Ha'aretz, 5 February 2001, http://www.haaretz.co.il/opinions/1.988376.

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52 HCJ 6427/02 The Movement for Quality Government in Israel v The Knesset 2006 PD 61(1) 619.

53 See, eg, HCJ 2056/04 Beit Surik Village Council v The Government of Israel 2004 PD 58(5) 807.

54 Arguably, these cases are ‘hard’ cases both legally, because of the conflicting legal considerations mentioned above, and politically.

55 Davidov, Guy and Reichman, Amnon, ‘Prolonged Armed Conflict and Diminished Deference to the Military: Lessons from Israel’ (2010) 25 Law and Social Inquiry 919Google Scholar.

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57 Dotan (ibid) reports that only 4.5% of Palestinian petitions against the military commander were granted between 1986 and 1995; Davidov and Reichman ((n 55) 935) found similar results: 4.6% of granted petitions against the military commander between 1990 and 2005.

58 Dotan (n 56).

59 Rousseau, Denise M, ‘Psychological and Implied Contracts in Organization’ (1989) 2 Employee Responsibilities and Rights Journal 121CrossRefGoogle Scholar; Coyle-Shapiro, Jacqueline A-M and Kessler, Ian, ‘Exploring Reciprocity through the Lens of the Psychological Contract: Employee and Employer Perspectives’ (2002) 11 European Journal of Work and Organizational Psychology 69CrossRefGoogle Scholar.

60 Noah J Goldstein and others, ‘I'll Scratch Your Back if You Scratch My Brother's: The Extended Self and Extradyadic Reciprocity Norms’ (2007) Poster presented at SPSP Conference, Memphis (as cited in Cialdini (n 1) 32).

61 Goldstein, Noah J, Griskevicius, Vladas and Cialdini, Robert B, ‘Reciprocity by Proxy: A Novel Influence Strategy for Stimulating Cooperation’ (2011) 56 Administrative Science Quarterly 441CrossRefGoogle Scholar.

62 Robert Cialdini, the most prominent scholar in the field of influence techniques, described how he is not immune to their influence – despite all his knowledge about such techniques. See Cialdini (n 1) 66.

63 Cialdini (n 1) 27 (sophisticated politicians are not immune to influence weapons).