How Judges Use Weapons of Influence: The Social Psychology of Courts
Guy Davidov* & Maayan Davidov**
Preliminary rough draft – May 2010
Introduction
Influencing others is often an important goal in human interaction. To achieve it, we
– and in particular “compliance practitioners”, who specialize in this art (e.g.
salespersons) – make use of different influence techniques. Cialdini (2009) groups them
into six “weapons of influence,” which people use in an effort to secure compliance with
their wishes and direct the behavior of others. These tactics are effective because they
take advantage of common human tendencies, such as people’s tendency to reciprocate;
to be consistent; to determine what is good based on what other people do; to respond
positively to people whom they like; to defer to authority; and to attach special value to
anything that is scarce. These human tendencies are largely adaptive, enabling people to
make quick and reasonable decisions given the abundance and complexity of information
and the inability to fully consider every little decision. Yet such human tendencies can
also be manipulated – consciously or subconsciously – by people who are trying to
influence others’ decisions.
It would hardly be surprising to learn that professional judges – like all other humans
– use the identified weapons of influence in their personal interactions with other people,
including fellow judges. Consider, for example, judges A and B who are sitting on the
same bench and have disagreements about the merits of a case. It is certainly plausible
that A would try to convince B not only by putting forward her best arguments, but also
by subtly reminding him that she sided with him in the past (thus relying on the principle
of reciprocation); by trying to show how her position can be derived from his own
previous judgments (relying on the principle of consistency); by pointing out that other
judges support her position (relying on the principle of social proof); by being socially
likable (relying on the principle of liking); by emphasizing her knowledge and credentials
in the specific area under consideration (relying on the principle of authority); or by
arguing that her position is unique and original and therefore likely to attract attention of
appeal court judges (relying on the principle of scarcity). Surely not all judges use such
methods, but nothing in such interactions would be especially noteworthy. It is, however,
much less obvious to note that weapons of influence are also used by courts
institutionally. The purpose of this article is to examine the use of such methods by courts
*
**
Faculty of Law, Hebrew University of Jerusalem.
School of Social Work and Social Welfare, Hebrew University of Jerusalem.
1
in their relationship vis-à-vis other institutional actors – the government, the legislature
and other courts – as well as the public at large.
From a formalistic (and in our opinion, naïve) viewpoint, it could be argued that
courts do not try to influence anyone. They are not making requests or selling anything;
they have the power to make legally binding rulings unilaterally. But courts in fact work
within a complex web of relations with the government, the legislature, the legal
community and the public at large [refs]. While courts generally develop the law within
the confines of their legal mandate, the boundaries of this mandate are far from clear.
Moreover, formal authority aside, they always prefer to minimize conflicts with the other
branches, to secure broad support for their judgments and preserve legitimacy. Holding
neither sword nor purse (Bickel, 1963), courts often have to manage conflicts with the
other branches – and they have limited “institutional capital” to do so [refs]. It is
therefore clear that courts do not simply lay down the law; rather, they need to convince
the other branches to accept it with minimum resistance. Weapons of influence can thus
become useful, as courts are constantly trying to influence others or secure their support,
and are very much in need of such influence techniques.
The main argument of this article is simple: at least some of the well-known weapons
of influence are employed by courts in their judgments, in an effort to secure acceptance
of those judgments and reduce resistance. Applying insights from a fascinating area of
social psychology to the legal sphere, we show that courts use techniques known as “foot
in the door,” “low-balling,” “door in the face” and others – all based on the ideas of
consistency and reciprocation.1 We use anecdotal evidence from the Israeli case-law to
make the point. We believe that the examples provided clearly show the judicial use of
such techniques, and not in isolated or extreme circumstances. It is highly likely, of
course, that similar examples exist in many other legal systems as well. While simple, the
argument has wide-ranging implications. By showing how judicial decisions can
sometimes be understood as involving weapons of influence, we offer a new tool with
useful explanatory powers. The purpose of the article is thus to illustrate the use of
influence techniques by courts, at least in some cases and, more broadly, to offer an
explanatory or analytical framework which can help in the understanding and prediction
of judicial practices.
In the next sections we describe several important influence techniques and how they
have been applied by the courts in specific cases.
1
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 as well: authority and social proof. However, we limit
ourselves in this paper to discussing the less obvious methods of influence employed by courts.
2
Foot in the Door
In a ground-breaking experiment performed more than four decades ago, Jonathan
Freedman and Scott Fraser have shown that even a small initial commitment to a cause
can subsequently lead people to make unexpected decisions in support of that cause. In
one of their studies, “volunteers” knocked on the doors of Californian residents and gave
them a very small sign (3-inch square, thin paper) reading “Be a Safe Driver,” asking
them only to accept and display the sign in their window or car. Then, a couple of weeks
later, residents were asked by different “volunteers” to place a very large sign on their
front loans reading “Drive Carefully.” It was made clear to them (with pictures) that the
sign is poorly lettered and would obscure much of the front of the house and completely
conceal the doorway. Participants who were approached with the large request only
(without the smaller request first) were generally reluctant to display the large and
unattractive sign, with only 16.7% agreeing to do so. In comparison, 76% of those who
previously agreed to accept the small sign were now willing to accept the much-larger
burden. The minor, trivial commitment that they have made to the same cause a couple of
weeks earlier has made all the difference, triggering a surprising response rate (Freedman
& Fraser, 1966). This phenomenon has been subsequently observed in numerous other
studies in various settings (for reviews see Dillard, 1991; Burger, 1999). Although it has
been demonstrated repeatedly, the foot-in-the-door effect also depends on various
conditions, and is not uniform. For example, in some situations and for some people the
technique is less effective or may even backfire (see Burger, 1999; Guadagno, Asher,
Demaine, & Cialdini, 2001), and cultural differences have also been observed (Petrova,
Cialdini & Sills, 2007).
There are a number of possible (non-exclusive) explanations for the “foot in the
door” phenomenon. Most notably, people often comply with the second request because
we tend to act consistently with our previous decisions (Cialdini, 2009). People may want
to feel or appear consistent with their commitment for a specific cause (e.g. safe driving),
or retain consistency with a more general view of the self created by the positive response
to the original request (e.g. as civic-minded activists). Indeed, the original study showed
that even people who were asked in the first stage to post a small sign unrelated to safe
driving (a sign reading “Keep California Beautiful”) were much more likely than the
comparison group to respond positively, a couple of weeks later, to the burdensome
request (47.6% vs. 16.7%, see Freedman & Fraser, 1966). Notably, research has shown
that for the “foot in the door” technique to be effective, individuals must perceive that
their initial behavior (compliance with the small request) was performed out of free
choice, a reflection of their own personal preferences, rather than the result of external
constraints or incentives (e.g., Burger, 1999; Petrova et al., 2007). This is perhaps the
reason why stronger effects have been observed for people with an individualistic
orientation as compared to a collectivistic orientation (Petrova et al., 2007).
3
The “foot in the door” strategy is often used successfully by people asking for
donations or recruiting volunteers for some other social cause (e.g., Carducci, Denser,
Bauer, Large & Ramaekers, 1989; Guéguen & Jacob, 2001), but it is not limited to prosocial requests: it has also proven to be successful in commercial marketing (e.g.,
Reingen & Kernan, 1977), in courtship (e.g., Guéguen et al., 2008) and in employment
relations (e.g., Herbout et al., 2008). Moreover, it has been shown to have a useful
potential as a tool in the hands of governmental agencies – e.g., in an effort to curb teen
smoking (Bloom et al., 2006) or to minimize energy consumption (Meineri & Guéguen,
2008): a minimal initial interaction, such as agreeing to respond to a short questionnaire,
significantly increases subsequent willingness to commit to the major cause.
The research to date has thus emphasized interpersonal interaction and psychological
processes experienced by the person being approached. On the face of it, it does not seem
likely to be applicable to the context of influencing institutions. But, surprisingly perhaps,
we believe that a very similar strategy is used by courts vis-à-vis other branches of
government. Consider for example the practice of courts to commonly make statements
about the law that go beyond what is necessary to decide the specific case. Common law
courts have developed the doctrine of obiter dictum, according to which such incidental
statements are not considered to be part of the binding precedent. Arguably, courts use
these statements – which are not needed for the case at hand and formally have no legal
effect – as a “foot in the door” of sorts. Common law courts that gradually develop the
law are interested in encouraging smooth acceptance of new developments. The early
exposure to new ideas which they put forward as obiter dictum ensures that later on,
when the time comes to formally change the law, little resistance will be incurred. We
thus argue that the obiter dictum can be understood as a weapon of influence employed
by courts. Whether judges use this weapon consciously or just resort to intuition (as many
salespersons do) is immaterial for current purposes.
How does the two-stage method reduce resistance to new precedents? Much as in
interpersonal interactions, this institutional interaction relies on the human tendency not
to resist small requests and then maintain consistency with the original decision. A new
development in the law presented as obiter dictum has no formal legal effect and
therefore attracts little publicity. Even if they do not explicitly endorse it, the other
branches of government do not usually feel the need to publicly oppose it. Nonetheless,
once the new (potential) judge-made law has appeared in writing, it is discussed and
recited by the legal community as the official view of the court. By the time the court
finds an opportunity to turn the obiter dictum into ratio decidendi (a legally binding
precedent), the new development appears as “old news” – and those who have not
opposed it thus far may feel that by doing so they will be acting inconsistently. Or they
may have become used to the idea that they are not the kind of people who actively
oppose such new laws.
4
Another form of a two-stage development of the law which can be seen as utilizing a
“foot in the door” technique is changing the law but refusing to apply the new law in the
same case. This method has often been used in Israel by former Chief Justice Aharon
Barak, who is widely credited for transforming many aspects of Israeli law. When
making new precedents in high-profile cases, in particular ones that set new limitations
on the State, Barak often went on to rule in favor of the State when applying the new law
to the facts of the specific case. Giving the State this short-run victory – allowing it to
win the current battle – has been instrumental in diffusing at least some of the opposition
to the new development of the law. A good example can be found in a case dealing with a
constitutional challenge to major cuts of welfare benefits, introduced by Israeli right-wing
governments (Commitment for Peace and Social Justice v. The Minister of Finance). The
Court ruled that the State has a positive obligation to ensure a dignified life for all its
citizens. Diffusing doubts on whether positive duties can be derived from Israel’s basic
laws, Chief Justice Barak made some strong statements which can open the door for
future petitions. He nonetheless went on to reject the specific petition, on the grounds that
it lacked sufficient evidence to support its factual claims.
The current Chief Justice of Israeli Supreme Court, Dorit Beinish, often resorts to
similar methods. Faced with a petition against the constitutionality of a controversial
“omnibus law” – a large set of major economic reforms passed in a single piece of
legislation, with minimal room for deliberations, together with the annual budget law –
Beinish introduced major developments to the law concerning judicial review of internal
Knesset proceedings (Organization of Poultry Breeders v. The Government of Israel).
But after making some bold new rules concerning legislation procedures, she went on to
reject the claim that these rules have been violated in the specific instance. The judgment
is very critical of the Knesset, which seems to support the view that the petition was not
rejected on its merits but rather for strategic reasons. The Court’s fear of confrontation
with the Knesset could certainly have played a role here. This judgment could therefore
be understood as preferring gradual development, to reduce confrontation and minimize
resistance to the new law. To that end the Court decided, when introducing a new law
with major implications for the legislature, to hand the Knesset a victory in the specific
case, thus arguably using a “foot in the door” method to facilitate the smooth acceptance
of the new law in future situations.
Low-balling
Our inclination to act consistently with our previous decisions makes us especially
susceptible to manipulation when we make some kind of commitment. This is reflected in
a technique termed “low-balling,” which in the US is often associated with the practices
of car salespersons. The idea is to offer customers a great deal, then after they are
committed (psychologically, not legally) to the deal, raise the price or reveal additional
costs, for example by saying that the air-conditioner is not included, or that the manager
5
does not authorize the promised discount. Because at that point most people are already
committed to the idea of buying the specific car, they will not backtrack from their
decision, despite the increase in total cost. In a similar fashion, the first study of this
compliance technique showed that if one wants to recruit students for a psychology
experiment which starts at 7am, it is much more effective to get them to first commit in
principle to taking part in an experiment, before exposing the information about the
inconvenient time (Cialdini et al., 1978). Although obviously they are still free to
backtrack once the additional information is revealed, many do not – apparently out of
commitment to their original decision (and a tendency to act consistently with it).
Interestingly, it does not appear to be “blind” commitment – rather, once the original
decision (commitment) has been made, people usually come up with new justifications
for it. The decision then stands on a number of “legs,” thus becoming strong enough to
stand even when one of those legs is removed (Cialdini, 2009).
An interesting study has shown how this technique can be instrumental in achieving
socially beneficial goals as well. Residents in Iowa using natural gas for heating were
asked to conserve gas and were given some energy-saving tips. The researchers promised
one group of people to be named as good fuel-saving citizens in a newspaper publication
if they succeed. This had a significant impact: it produced substantial cuts in energy
consumption, compared with people who were only offered tips (without the publicity),
who did not change their behavior at all. Most notably, the impact lasted even after the
participants received a letter backtracking from the promise of publicity – informing them
that it will not be possible after all. Indeed, not only that they continued to save gas, the
savings even increased in the period following the letter (Pallak et al., 1980). Apparently,
once the decision to save gas has been made, new justifications were created – saving
money, protecting the environment, self-perception as “a good citizen”, etc. – and the
original justification (promise of publicity) that previously made all the difference was no
longer necessary.
A similar method of influence has arguably been used by the Israeli Supreme Court
when developing the doctrine of “unreasonableness.” In Israel the rules of administrative
law, which set limits on the actions of governmental bodies, are mostly judge-made. The
basic principles, which were introduced by the Supreme Court in the early 1950s (soon
after the establishment of the State), were mostly designed to ensure that government
officials act within the confines of their legal authority, and that the rules of “natural
justice” (mostly meaning procedural fairness) are observed. There was very little
interference in government officials’ discretion. Starting from the late 1970s, however,
the Court developed a doctrine of “unreasonableness,” allowing a much deeper inquiry
into the wisdom of a governmental decision (see especially Dapey Zahav v. IBA). To
smooth the acceptance of this development, the Court emphasized that it will only
intervene when a decision suffers from extreme unreasonableness. It further tried to argue
6
that there is nothing new in this doctrine – that Israeli courts have in fact used the
principle of unreasonableness already in the past. Yet in the following years, after the
doctrine gained broad acceptance, the Court started using it much more liberally,
invalidating numerous governmental decisions for being unreasonable. Although in
theory Israeli judges still maintain that intervention is limited to cases of extreme
unreasonableness, in practice they have become more activists in applying this doctrine.
We do not argue that the Court necessarily intended to “throw a low ball” in this
case, but whether they planned it or not the judges can be seen as having used a lowballing technique. When putting forward a new law which could potentially infuriate the
government and endanger the delicate relations between the court and the other branches,
the judges made conscious efforts to portray it as having “low costs” for the government:
as a harmless and innocuous law (applied very rarely) which is not really new. Then once
the new law was accepted, the Court increased its “cost” for the government by using it
more liberally in following years to justify intervention – a change which by then the
government (and the public) was already compelled to accept. The “trick” does not work
on everyone – the new development has attracted strong critique from at least one senior
official of the Attorney General office (Shaked, 1982). But overall the acceptance of the
new law and its application was quite smooth. After a few years, the value of the new
doctrine became clear to most observers, as it allowed the Court to prevent various
corrupt and enraging decisions of governmental bodies. Although the doctrine of
unreasonableness is still being occasionally critiqued (Shamir, 1994; Dotan, 2003), it
appears to enjoy broad support. Once other legs were created for the new doctrine to
stand on, the one that was originally crucial – limiting intervention to “extreme”
situations – was no longer necessary. The judges still use the same rhetoric to this day,
but it is quite obvious that their intervention is not limited to truly extreme cases.
Giving a Reputation to Uphold
There is yet another method of influence based on the principle of consistency which
courts appear to be using. When we present ourselves in a certain light – making in effect
a public commitment to having certain characteristics – it has a significant impact on the
way we see ourselves and behave. For example, social psychologists have found that
people who were asked to tell an interviewer that they are sociable, subsequently
appraised themselves as being more sociable (relative to their previous self-reports), and
have actually behaved more sociably, as evaluated by independent observers, compared
to participants who did not present themselves as sociable (Schlenker, Dlugolecki &
Doherty, 1994). This tendency can be manipulated when people tell us we own certain
qualities, thereby not only making us feel good about ourselves but also giving us a
reputation to uphold. Such statements are not merely innocent flattery – they can alter
one’s self-perception and consequently affect her future behavior. This has been
demonstrated convincingly in studies with children. For example, when children were
7
told (e.g., by their teacher) that they are neat and tidy people, thus giving them a
reputation to uphold, they subsequently littered less and cleaned up more compared to
children who were told in various ways that they should be neat and tidy and why this is
important, or to children who were told nothing about the topic (Miller, Brickman &
Bolen, 1975). In another illustrative study, children donated some of their earnings from a
game to needy children and were then either told nothing, or told that it was a good and
nice thing to have done, or told that they likely donated because they are kind individuals
who like to help others when they can. Those children in the latter condition, who were
given a positive self-image to uphold, subsequently helped and shared to a greater extent
on several different tasks than did children in the other two conditions (Grusec & Redler,
1980). Studies like these illustrate how influential it can be to label others in favorable
ways or attribute positive characteristics to them.
Cialdini (2009: 68) gives the example of Anwar Sadat, the former Egyptian
president, who was considered a shrewd negotiator. Apparently he used to start
international negotiations by complimenting negotiators from the other side on the wellknown cooperativeness and fairness of their country. Because people from the other side
usually considered these to be positive qualities, they may have felt publicly committed
to stand up to this reputation.
The same technique is sometimes employed by Israeli courts. For example, in 1997
the National Labour Court was faced with a blatant violation of an injunction it has
issued to the Histadrut (Israel’s largest labor union). This was an exceptional situation,
and the Court made it clear that it will not allow such violations (The State of Israel v.
The Histadrut). At the same time, the judgment emphasizes the fact that over the years,
the Histadrut has always obeyed the Court’s orders, and that its current leadership as well
has often expressed commitment to respect the Court’s orders. The judgment concludes
with a conciliatory message, when the Court notes that it considers the incident to be a
“one-time slip.” Rather than chastising the Histadrut for the violation, the Court chose to
influence the union’s future actions by pointing attention to its historic role and its longtime respect for the rule of law, thereby giving it a reputation to uphold.
Door in the Face
The weapons of influence considered thus far have all relied on our tendency to be
consistent. The next technique relies on a different principle that also guides us – and has
been described as a fundamental characteristic of human societies (Gouldner 1960) –
reciprocation: our desire to repay others for what we have received from them. A
powerful method which builds on this principle – called “door in the face” – is based on
first making an excessive request that is inevitably rejected (metaphorically shutting the
door in the requestor’s face), and then proceeding immediately to make a more modest
request, which at this point the individual often feels compelled to accept. In the seminal
8
study examining this technique, Robert Cialdini and his colleagues have shown how it
can be highly successful at getting college students to volunteer for taking a group of
juvenile delinquents for a day trip to the zoo (Cialdini et al., 1975). While some students
were presented with this request in a straightforward manner, another group was first
asked to volunteer for a much more burdensome program: to become counselors for
young delinquents and commit for 2 hours of counseling per week for a minimum of two
years. Unsurprisingly, everyone refused the extreme request; but they were immediately
asked to volunteer for the day trip instead. In other words, the “real” request was
presented only after the targets have figuratively “slammed a door” in the face of the
original (excessive) request. The results were striking: while the straightforward approach
produced only 16.7% of positive responses, the “door in the face” manipulation produced
50% of positive responses to the same request.
Various explanations have been proposed for this technique (see, for example,
Cialdini & Goldstein, 2004), but a central one appears to be people’s tendency to
reciprocate: once the person making the original request has retreated to a much smaller
one, many people feel obliged to reciprocate this concession by accepting the second
(smaller) request. The “door in the face” procedure also takes advantage of a second
phenomenon, called the contrast principle (Cialdini, 2009). Our evaluation of any given
thing (a request, a deal, a rule, etc.) is affected by the examples that we use as
comparisons (another request, deal, rule, etc.). If you lift a book right after lifting a
pencil, or lift the same book after lifting a heavy box, its weight will be experienced as
different. The book will seem much lighter once it is evaluated (unconsciously) against
the heavier object. In the “door in the face” technique, the second request is made to
appear more reasonable because it is compared to the excessive initial request; if it were
presented without such anchor, the same “modest” request might be judged as
unreasonable and rejected. Thus, the day trip with those young delinquents was suddenly
less intimidating when another option – much more burdensome – was put in
comparison. This combination of inducing the motivation to reciprocate the other’s
apparent concession, and making the second offer appear highly reasonable by
comparison, make the door-in-the-face a highly powerful technique, and one that is
frequently used by various compliance agents.2
2
There is also a somewhat similar method of influence, called the “that’s not all” technique (Burger
1986). Here an initial inflated offer/request is made and soon after, before the target 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. Similarly to this technique, however, the effectiveness of the
“that’s not all” strategy appears to be in part due to a desire to reciprocate the requester’s concession,
but also due to the contrast between the two offers which increases the perceived attractiveness of the
second one (Burger 1986). Interestingly, the technique has been also shown to backfire if the initial
offer is too extreme (Burger, Reed, DeCesare, Rauner & Rozolis, 1999).
9
We argue that this weapon of influence can be found in the case-law as well.
Consider the example of non-compete agreements in employment relations. Because such
agreements are considered to be in restraint of trade, limiting competition as well as the
worker’s freedom of occupation, Israeli courts (like counterparts in many other countries)
have traditionally examined whether the restraint is “reasonable” – otherwise invalidating
it for being against “public policy.” However, this test has been applied over the years in
a way which allowed a rather broad (and expanding) use of non-compete covenants, to
the point of being used in the late 1990s even for manual laborers with no access to trade
secrets. At this point the National Labor Court intervened and made dramatic changes to
the law, changing the default rule and creating a presumption that non-compete
agreements are invalid, unless the employer can prove a legitimate justification for such a
contractual covenant. The Court further listed a limited number of possible legitimate
justifications, making clear that they are only intended for exceptional situations (Frumer
v. Redguard).
This led to initial shock by the business community, with some critiques in the
popular media by industry leaders and lawyers (Goldberg, 2000; Bior, 2001). For a
couple of years no non-compete agreements were accepted by the labor courts. But after
a while, the National Labor Court has started to “loosen the knot,” gradually accepting
more and more non-compete covenants which seemed justified in the circumstances. In
effect, the Court has retreated from the original, extreme position introduced in Frumer v.
Redguard, preferring instead a more moderate and nuanced position which allows a
degree of trade restraints (but much less than what has become common during the
1990s). The current system appears to enjoy broad support. Whether this was planned in
advance or not, the Court seems to have pulled a “door in the face” stunt in this case.
Changing the law in two stages – starting with an extreme position and then
retreating to a more moderate one – was not only instrumental in securing acceptance of
the new law (in its final version). If this is seen as the main goal, the strategy is very
risky: inviting a serious backlash and strong resistance to the first version of the new law,
only to enjoy a smoother acceptance of the final version. We believe, however, that the
Court had another goal in mind: ensuring broad compliance with the new law. Labor and
employment laws are notoriously difficult to enforce, because employees often lack the
knowledge about an infringement of their rights or the resources to sue, or they fear
retribution from the employer (Davidov 2005, 2010). As a result, laws which are not
crystal clear, or otherwise leave some room for discretion, often end as prey for
employers, who use any doubts as an excuse to evade the law or an opportunity to abuse
it. In Frumer v. Redguard the Court wanted to stop problematic yet prevalent practices,
so it assumed an extreme position first – taking a very clear stance – before retreating a
couple of years later to the desired solution. This strategy was thus useful in minimizing
non-compliance problems.
10
Another strategy which is sometimes used by courts can also be seen as employing
the “door in the face” technique. When grappling with a novel legal question, the Court
sometimes puts forward a number of possible solutions. Former Chief Justice Barak in
particular – perhaps because of his academic background – was known for including
detailed analytic discussions in his judgments, which sometimes included a consideration
of competing solutions. Barak had a habit of portraying his own view as the middle view
– and for that purpose starting with two extreme positions, only to end up offering his
own position as a balanced and moderate solution. This method was useful in securing
broad acceptance of the new law. The extreme positions, which the Court considered
first, were in effect an invitation for a “door in the face,” used only to ease acceptance of
the final (more moderate) position laid down in the judgment.
An example for this strategy can be found in the case of The Movement for Quality
Government v. The Knesset, in which the Supreme Court had to decide whether a right to
equality is constitutionally protected. Israel’s basic laws, which give some rights an
elevated constitutional status, do not include any explicit right to equality. But they do
include a broad and rather vague right to the protection of one’s “human dignity,” and the
Court was asked to read into this term a more concrete right to equal treatment. Chief
Justice Barak, writing for the majority of the Court, took the position that a right to
equality is constitutionally protected to the extent that it prohibits discrimination that can
be seen as offending human dignity. This new development of the law was dramatic and
arguably radical, but Barak made an effort to portray it as balanced and moderate. He
started by putting forward a “narrow model” for understanding the right to “human
dignity” as it appears in the basic law, and a “broad model” (according to which all
human rights are derived from the right to human dignity) – before providing
justifications for his own “intermediate model.” Barak can thus be seen as if asking for a
reciprocal concession – a smooth acceptance of the new law in return for his willingness
not to go “all the way” and adopt the far-reaching broad model. In addition, by presenting
the extreme models, Barak’s judgment also makes use of the contrast effect, as the
intermediate interpretation appears more reasonable and less controversial in comparison
to these extremes than if it had been presented alone.
Other Forms of Reciprocation
A “door in the face” routine is a sophisticated manipulation of the principle of
reciprocation, at least when pre-planned. But weapons of influence can be simpler as
well: any concession to one’s counterpart can be understood to be embedded with an
expectation of reciprocation. Courts are generally considered to be insulated from the
political process, and therefore might be thought of as foreign to such “give and take”
dealings. But a realistic reading of judicial judgments can expose the use of such methods
as well.
11
Consider the response to the numerous petitions brought by Palestinians against
decisions of the military commander in charge of the Occupied Territories. The Israeli
Supreme Court considers the commander to be subject to the rules of Israeli
administrative law, just like any other governmental agency. It is accordingly willing to
entertain petitions arguing that the commander acted ultra vires (outside of his legal
authority) or that he has exercised his discretion in a grossly unreasonable way. Yet as a
matter of practice, the Court is faced with great difficulties when performing judicial
review in this context. On the one hand it is usually inclined to prevent infringements of
human rights. On the other hand it is usually inclined to accept the position of military
professionals regarding the means made necessary by security concerns.
Faced with this difficulty, the Court resorts to a creative (though controversial)
solution: “favorable dismissals” (Davidov & Reichman, in press). In numerous cases it
dismisses the petition, but only after ensuring that the military commander has changed
his original decision at least to some extent, thereby in effect granting at least partially the
requested remedy. This solution is achieved by encouraging bargaining “in the shadow of
the Court” – leading to settlements between the Attorney General office and the
petitioners (Dotan, 1999) – or by pressuring the Attorney General lawyers in Court to
agree to some concessions in return for the petition’s dismissal. It is important to note
that this is not a regular case of judges pressuring the parties to settle; rather, when using
the “favorable dismissal” method, the Court itself is a player in the “game” of
reciprocations. Although there appears to be a relationship of reciprocal concessions
between the petitioner and the Attorney General (representing the military commander),
there is also – and arguably more importantly – a similar relationship between the
Attorney General and the Court. For the government lawyers, the Court’s concession to
dismiss many petitions means that they rarely lose cases, in the sense of a petition being
formally granted. In addition, they enjoy a heightened level of trust: Their “stamp of
approval” on a decision of the commander is in most cases sufficient to trigger the
petition’s rejection. In return, they are expected to minimize infringements of human
rights in the Occupied Territories, by altering decisions of the military commander. They
are thus given a role as de facto “agents” of the Court (Dotan 1999). This reciprocal
arrangement relieves the Court to some extent from the difficult task of issuing
judgments in such hard cases, and also from the risk of entering into conflict with the
military (and the government in general) over such judgments.
Between Individuals and Institutions
The research to date has shown that so-called “weapons of influence” work, because
the “targets” have specific human traits making them susceptible to such manipulations.
Moreover, the research has focused on making requests or offering deals, with an
emphasis on the ability of the “target” to make a free choice. On the face of it, then, there
is no reason to expect the same findings to apply in the context of judicial decisions.
12
Judgments are not directed at any specific person, whose tendency to act consistently or
to reciprocate can be exploited. Yet as the current paper has illustrated, judges in fact
resort to many of the known “weapons of influence” in their judgments.
How do these techniques work when we shift from the realm of interpersonal
interaction to institutional relations? Surprisingly perhaps, as we have shown, they work
in very similar ways. True, in the formal legal sense the recipients of judicial judgments
are not facing any “choice” not to accept them – and as noted, the perception of free
choice has been shown to be critical for the success of influence techniques. But if we
consider the need of the Court to secure broad support for its decisions, and avoid
resistance and clashes (for example, in the form of attempts to change a new judge-made
law by legislation), it becomes obvious that the courts’ counterparts do have choices to
make regarding how to respond to the judgments. Judges can therefore benefit from using
effective weapons of influence in order to steer the other branches, the legal community,
and the public, to respond in ways that are more desirable from the Court’s perspective.
As for the fact that courts are not facing specific individuals in their influence
attempts, it is interesting to note that new research suggests that the principle of
reciprocation applies to groups as well. A perceived obligation to reciprocate can be
relieved by helping someone who is connected to the benefactor, such as a family
member or group member (Goldstein et al. 2007 as cited in Cialdini, 2009). So it should
not be surprising that government officials, for example, who identify with their
organization/institution, wish to act consistently with their co-workers, and to reciprocate
concessions which their colleagues had received. More generally, institutions reflect at
least to some extent the opinions and inclinations of the individuals comprising them. It is
therefore quite plausible that institutions will respond to influence techniques in much the
same way as individuals do – even if the specific people of which the institution is
composed change from time to time or have different characteristics. The current analysis
appears to support this view. Empirical research examining the responses of individuals
working within institutions to the influence techniques employed by the representatives
of other institutions could shed further light on these interesting questions.
One might also find it perplexing that legislators and government officials – who are
presumed to be sophisticated and “repeat players” – would be affected by such influence
tactics. Yet because such weapons of influence take advantage of deeply engrained
human motivations, such as the need to remain consistent and the obligation to
reciprocate, familiarity with them is often insufficient to make one immune to their
effects. To be sure, the techniques are not effective with everyone or in all circumstances.
But just as these weapons of influence work on many of us even though we have been
exposed to them more than once, it should not be surprising that they affect politicians
and government officials – at least in some cases (enough to justify the continued use of
the technique by courts).
13
Conclusions
Given the variety of influence techniques that may be employed, a fascinating
question for future research has to do with when specific strategies are more likely to be
used by courts. In other words, what are the circumstances under which each method of
influence is more likely to be used, and to be effective? Interestingly, the social
psychological literature is not helpful at shedding light on this question, as its focus has
been on the methods and processes by which individuals can be influenced or
manipulated to comply, rather than on the factors and processes affecting the influencer’s
choice of method. It is, therefore, an open question in general, not only in its application
to judicial decisions.
Our examination of the case-law from the perspective of influence tactics has led us
to a few tentative hypotheses. First, the “foot in the door” technique appears to be most
relevant when courts are interested in gradual development of the law. It is also plausible
that judges prefer this method when they feel somewhat insecure about the court’s status,
and are concerned that too large a development would generate strong resistance. Second,
in contrast to the “foot in the door” technique, the “door in the face” method appears to
be bolder, and may be employed for facilitating more rapid changes in the law,
particularly when applied in two steps (as in the case of the National Labor Court’s
rulings regarding non-compete agreements described above). An initial ruling which is
essentially more extreme than ultimately needed is bound to be met with resistance, and
courts are therefore only likely to utilize it when they are confident about their political
status. More research is needed in order to examine these possibilities, and shed light on
the factors affecting the choice of influence weapons by courts.
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Cases
Commitment for Peace and Social Justice v. The Minister of Finance, 60(3) PD 464
(2005) (Supreme Court of Israel) (Hebrew)
Dapey Zahav v. IBA, 38(1) PD 421 (1980) (Supreme Court of Israel) (Hebrew)
Frumer v. Redguard, 34 PDA 294 (1999) (The Israeli National Labor Court) (Hebrew)
Organization of Poultry Breeders v. The Government of Israel, 59(2) PD 14 (Supreme
Court of Israel) (Hebrew)
The Movement for Quality Government in Israel v. The Knesset, judgment of May 11,
2006 (Supreme Court of Israel) (Hebrew)
The State of Israel v. The Histadrut, 32 PDA 337 (1999) (The Israeli National Labor
Court) (Hebrew)
17