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When Judges Have a Hunch ‐ Intuition and Experience in Judicial Decision-Making

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This article aims to inform judges, legal scholars and philosophers of law on new developments in psychology and neuroscience that prove judicial "hunches" or intuitions are all-pervading in judicial decision-making. Unlike the "legal reasoning" paradigm taught in law schools and in judicial training, which overemphasises the rational, conscious, syllogistic nature of reasoning, new theories show that intuitions naturally take place in all minds that have amassed enough professional expertise.

More particularly, this essay argues that intuitions appear in judges' minds in all types of cases, easy or hard, at all levels of the judiciary; and that this is neither something to ignore not something to denigrate. Neurological and psychological research shows intuitions are not necessarily irrational and unwanted, but most likely the most effective way in which the judge's brain adapts to the immense pressures of the job – be it increasing workloads, limited time to spend on a case, or the limited information available. This article aims to change the paradigm in judicial decision-making by making judicial intuitions reasonable, accepted, and even desirable.
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Keywords: BOUNDED RATIONALITY; COURT; DUAL PROCESS THEORY; HUNCH; INTUITION; JUDGE; JUDICIAL BEHAVIOUR; JUDICIAL DECISION-MAKING; LEGAL REASONING

Document Type: Research Article

Publication date: 01 April 2016

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  • Archiv für Rechts- und Sozialphilosophie, edited by authorisation of the International Association for Philosophy of Law and Social Philosophy (IVR), is an international, peer-reviewed journal, first published in 1907. It features original articles on philosophical research on legal and social questions, covering all aspects of social and legal life.
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