Constantinescu on Judicial Decision-Making

A New Theory of Hunch in Judicial Decision-Making

Diana Constantinescu

University College London, Faculty of Laws


February 21, 2012

Abstract:     
In this essay I wish to approach an issue which is consistently disregarded in current jurisprudential debates – the issue of the judicial hunch. I wish to argue that hunches and intuitions happen much more often than we think; they are present at all levels of the judiciary, in easy and hard cases, at all levels of expertise. In fact, my argument goes stronger than that: hunches are an essential component of the act of judging. I also wish to show that “legal reasoning”, if it has to be used properly, designates but part of the judicial decision-making process, and it has less importance than legal theorists usually give it.

In our judicial decision-making discussion I wish to introduce two new types of theories which are useful in understanding what judicial hunches are and what role they play in the act of judging. The first one is already widely accepted in psychology and has strong supporting evidence from neuroscience; I will call it the fast/slow thinking distinction. The second theory is based on recent neurological findings and represents the new psychological paradigm of intuition. It tries to answer questions and dilemmas which legal theorists will find familiar: Is intuition rational or emotional? Do feelings influence intuition? Is intuition a process or a result? What role does professional expertise have in intuition? Are intuitions “accurate”? And the list could go on. The applicability of these theories to judicial decision-making will become apparent once I flesh them out in the paper.

Number of Pages in PDF File: 14

Keywords: judges, courts, judicial decisionmaking, hunches, intuition, legal reasoning

Full text available at:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2009883