Abstract
The current paper analyses the role of hunches in the judicial decision-making process, particularly in the judgment of what legal theorists call “easy cases”. It suggests that in these cases (which represent the bulk of cases in any jurisdiction), hunches are better seen as short-circuiting algorithms which judges form in time, rather than mere intuitions. This idea is supported by differences between more and less experienced judges, or by the fact that they can be verbalized and argued for in judicial sentences. Hunches (as algorithms) are created over time, through routine, by using specific devices.The first section of the paper describes these devices that predetermine the creation of hunches. At the same time it argues against seeing hunches as intuitions, by drawing a theoretical distinction between the two with the aid of recent empirical discoveries. The second section presents the “province of judicial hunch”, i.e. the components of judicial decision-making where hunches come into play – starting from the process of judging the parties, ending with law interpretation and weighting the consequences of the decision.Eventually, this essay provides an opening point for taking judicial hunches seriously, as virtues of our human aim towards efficiency, and not as “flaws” derived from our human irrationality.I am indebted to Prof Stephen Guest and Dr George Letsas from University College London, as well as to Prof Fred Schauer from University of Virginia, for important feedback on this paper.This paper would have not existed without the financial support of the Ratiu Family Foundation, UK, and of the Dinu Patriciu Foundation, Romania.
Published Version
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