An intuitive approach to judicial expertise

Abstract

Research shows that expert performance in many fields of activity is embodied in an expert level of intuition. This appears to be true in predictable domains with fixed rules. However, evidence suggests that this type of expertise also exists among representatives of more naturalistic domains, such as firefighters or art specialists. This paper considers whether a kind of expertise embodied in expert intuition can occur in judges. It supports the thesis that it is possible to achieve expert intuition in the scope of some types of court situations consisting of legal problems with an objective legal standard for solving them. However, legal intuition is ineffective in cases involving legal problems with no such standard, and thus it cannot be developed to the expert level in this respect. The paper discusses two model examples of comparable legal problems: those that generate a completely novel normative issue for judges, and those that create a conflict between judicial intuitions, frequently regarding the relation between law and morality. In both of these situations there are no visible environmental regularities (repetitive patterns of legal practice) to adapt, and hence, it is impossible to perform a deliberate practice – a form of training indispensable for developing expert intuition – for legal decision-making. Legal intuitive expertise, therefore, appears to be powerless in determining the holistic answers to some legal court cases, despite the skills and experience of the judge.