Do Not Ignore the Elephant... Exploring the Role of Intuition and Experience in Judicial Decision-MakingRok vydání: 2021
If we look at the literature about judicial decision-making and interpretation of law, we can find many texts which are dedicated to legal arguments, logic and legal reasoning – in those texts the rationality, analytical and logical thinking is glorified and an interpretation seems ‘just’ as a logical operation where judges subsume certain facts under general legal norm or norms, those norms are formulated linguistically, so it seems that the whole job of judges is to analyze texts. What we can see more rarely are discussions and texts exploring the role of intuitions, feelings and emotions and their role in judicial decision-making – at least in the Czech Republic. Those of our faculties are seen as the source of bias and distortion. Even if we look to the past, those themes are not so common among legal theorists and philosophers – especially in our tradition where we are still influenced by Hans Kelsen and František Weyr and their normative theory – but we can find exceptions and those are the American legal realists. In this paper, we will show that their observations and insights seem to be right. How can we know it? Because in last decades cognitive scientists have made big progress in the area of decision-making and it seems that we are not so rational as we thought us to be. They have explored that our thinking does not take place only through the deliberative system but, surprisingly, there is also another one system which influences our decisions. This system is automatic, fast, and intuitive – some call this system S1, Seymour Epstein an experiential system. This automatic system is more influential than our deliberative system because it is always heard – we can use Jonathan Haidt’s metaphor of an elephant and a rider. S1, the intuitive, experiential system, is an elephant and S2, the deliberative, analytical system is the rider – in legal theory, we have talked about the rider a lot but we do not explore the elephant sufficiently. This paper will try to uncover the nature of the elephant.
Hunch; Intuition; Experience; Cognitive Science.
Betsch, T. (2014) The Nature of Intuition and Its Neglect in Research on Judgment and Decision Making. In: Plessner, H., Betsch, C., Betsch, T. (eds.). Intuitition in Judgment and Decision Making. London-Routledge: Taylor and Francis Group.
Brožek, B. (2020) The Legal Mind: A New Introduction to Legal Epistemology. Cambridge: Cambridge University Press. https://doi.org/10.1017/9781108695084
Damasio, A. (2006) Descartes’ Error: Emotion, Reason and the Human Brain. London: Vintage. https://doi.org/10.1111/j.1749-6632.2001.tb03475.x
Duxbury, N. (1991) Jerome Frank and the Legacy of Legal Realism. Journal of Law and Society, 18 (2). https://doi.org/10.2307/1410136. Available from: https://www.jstor.org/stable/1410136?seq=1#metadata_info_tab_contents [cit. 8. 6. 2021]. https://doi.org/10.2307/1410136
Dworkin, R. (1977) Taking Rights Seriously. Cambridge: Harvard University Press.
Epstein, S. (2014) Intuition from the Perspective of Cognitive-Experiential Self-Theory. In: Plessner, H., Betsch, C., Betsch, T. (eds.) Intuitition in Judgment and Decision Making. London: Routledge: Taylor and Francis Group.
Haidt, J. (2006) The Happiness Hypothesis: Finding Modern Truth in Ancient Wisdom. New York: Basic Books. A Member of the Perseus Books Group.
Hogarth, R. M. (2014) On the Learning of Intuition. In: Plessner, H., Betsch, C., Betsch, T. (eds.) Intuitition in Judgment and Decision Making. London-Routledge: Taylor and Francis Group.
Hutchenson, J. C., Jr. (1929) The Judgment Intuitive: The Role of the ‘Hunch’ in Judicial Decision. Cornell Law Review, 14 (3). Available at: https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1282&context=clr [cit. 8. 6. 2021].
Kahneman, D. (2011) Thinking Fast and Slow. New York: Farrar, Straus and Giroux.
Kahneman, D., Shane, F. (2002) Representativeness Revisited: Attribute Substitution in Intuitive Judgment. In: Gilovich, T., Griffin, D. W., Kahneman, D. (eds.) Heuristics and Biases: The Psychology of Intuitive Judgment. Cambridge: Cambridge University Press. https://doi.org/10.1017/CBO9780511808098.004
Klein, G. (2017) Sources of Power: How People Make Decisions. Cambridge: The MIT Press. https://doi.org/10.7551/mitpress/11307.001.0001
Leiter, B. (2007) Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy. Oxford: Oxford University Press.
Richards, D. (2016) When Judges Have a Hunch: Intuition (and Some Other Emotion) in Judicial Decision Making. ARSP: Archives for Philosophy of Law and Social Philosophy, 102 (2). Available at: https://houstonlawreview.org/article/4799-the-role-of-intuition-in-judicial-decisionmaking [cit. 8. 6. 2021].
Schauer, F. (1991) Playing by the Rules. Oxford: Oxford University Press.
Sloman, S. (2002) Two Systems of Reasoning. In: Gilovich, T., Griffin, D. W., Kahneman, D. (eds.) Heuristics and Biases: The Psychology of Intuitive Judgment. Cambridge: Cambridge University Press. https://doi.org/10.1017/CBO9780511808098.024
Tomasello, M. (2014) A Natural History of Human Thinking. Harvard: Harvard University Press. https://doi.org/10.4159/9780674726369
University of Leeds (2008) Go With Your Gut – Intuition Is More Than Just A Hunch, Says New Research. ScienceDaily, 6 March 2008. Available at: https://www.sciencedaily.com/releases/2008/03/080305144210.htm [cit. 20. 9. 2021].
Wright, G. R. (2006) The Role of Intuition in Judicial Decisionmaking. Houston Law Review, 42 (5). Available at: https://houstonlawreview.org/article/4799-the-role-of-intuition-in-judicial-decisionmaking [cit. 8. 6. 2021].