1
Intuition
The last few decades can rightly be termed the age of intuition. While the
traditional approach to human cognition revolved around conscious thinking
and investigated such problems as logically valid reasoning schemes, standards
for belief revision, formal justification criteria, or ramifications of the rational
choice, more recent contributions to the field have enjoyed a somewhat different
focus. Psychologists, economists, and philosophers are more inclined to
speak about the unconscious decision-making processes, the role of heuristics
in human thinking, or the importance of emotions for our cognitive efforts.1
The image of the human mind that has emerged as a result is one which has
been completely transformed. No longer are they a bundle of rational powers,
with intuition and other unconscious mechanisms constituting only an irrational
nuisance; our minds are increasingly seen as operating largely at the
unconscious level and as emotion-driven, with the rational faculties only constituting
an addition or overlay of sorts. The goal of this chapter is to consider
how this fundamental theoretical shift influences our reflections upon the very
nature of legal thinking.
Of course, the question pertaining to the role of intuition or other unconscious
processes in legal decision-making is not one that is completely alien to legal
philosophy. Representatives of the realist movement, most notably Leon
Petraz˙ycki and Joseph Hutcheson, devoted considerable effort to elucidating the
place of intuitive judgment in the law.2
However, their positions, while doubtless
interesting and filled with striking observations, were developed against a relatively
poor theoretical background: the picture of the human mind available in the first
half of the twentieth century was quite different from the one that is being sketched
out by the contemporary cognitive sciences. Therefore, it is only reasonable to
rethink the role and place of unconscious processes in legal thinking in light of the
latest experiments and theories.
1
See e.g. Damasio, 2006; Damasio, 2018; Kahneman, 2011.
2
Cf. Petraz˙ycki, 2011; Hutcheson, 1929.
There is no common agreement as to the exact shape and nature of the mechanisms
comprising the unconscious mind. However, two such mechanisms are usually
brought to the fore: intuition and insight. The former is a fast, automatic, and
experience-based faculty, one which provides immediate answers to the encountered
problem. The latter, in turn, is connected to a situation when no immediate
answer is available or the potential answers are in conflict. Under such circumstances,
it is possible that a sudden, unexpected, and novel solution to a problem
comes to one’s mind. Importantly, intuition and insight seem to share the same
neural infrastructure; they are linked at the structural and functional level. In this
chapter, I will try to show how the interplay between them can help solve legal
problems.
The psychological literature places considerable emphasis on the typical and
systematic mistakes people tend to commit when they rely on intuitive judgments.
This research paradigm was initiated by the groundbreaking experiments of Daniel
Kahneman and Amos Tversky in the 1970s.3
Since then, it has been demonstrated
that these mistakes (e.g. anchoring effect) are also made in the context of legal
thinking.4
It is a serious challenge to the claim that intuition, together with other
unconscious mechanisms, is an important tool in the lawyer’s mental toolbox: if it
produces so many mistakes, one should avoid it at any cost. I shall argue, however,
that the dangers connected with intuition are considerably exaggerated. Under
typical circumstances, our intuitive judgments are quite reliable; they only become
questionable when we encounter an abstract and atypical problem.
The discussion of the role of intuition and other unconscious mechanisms in legal
decision-making may be seen as a part of a larger debate pertaining to the place of
reason and emotions in legal and, more generally, practical reasoning. The picture
of the human mind being developed by contemporary cognitive sciences may be
somewhat alien to one accustomed to more traditional conceptions. It transpires that
we are driven by our emotions not only in social interactions but also in our cognitive
efforts. Reason has a relatively smaller, but still important, role to play in this context.
From this perspective, lawyers are far more emotional creatures than is usually
assumed. I will address this issue in some detail at the end of this chapter.
1.1 hunch
In 1929, US judge J. C. Hutcheson published a lecture entitled “The Judgment
Intuitive: The Role of the ‘Hunch’ in Judicial Decision.”5
It is an enormously
engaging, few-page long defense of the role of intuition (Hutcheson calls it hunch)
in judicial reasoning. Hutcheson admits that he came to appreciate its role quite
late, when he himself became a judge. After graduating from university, he
3
Cf. Tversky & Kahneman, 1974.
4
Guthrie et al., 2000; Enough & Mussweiler, 2001.
5
Hutcheson, 1929.
12 The Legal Mind
entertained a different view of the application of law, in which a judge’s intellect is
a “cold logic engine,” and the law is seen as a “system of rules and precedents, of
categories and concepts,” which could be “administered” correctly to arrive at
a solution to any legal problem.6
Actually, however, things are quite different:
While when the case is difficult or involved, and turns upon a hairsbreadth of law or
of fact . . ., I, after canvassing all the available material at my command, and duly
cogitating upon it, give my imagination play, and brooding over the cause, wait for
the feeling, the hunch – that intuitive flash of understanding which makes the
jump-spark connection between question and decision, and at the point where the
path is darkest for the judicial feet, sheds its light along the way.7
Hutcheson is quick to add that the hunch is not only at the disposal of extraordinary
judges – all good lawyers utilize it, although attorneys will intuitively seek solutions
beneficial for their clients, while the judge will aim at a just and legally acceptable
decision. Moreover, the role of intuition is not limited to the sphere of law:
that tiptoe faculty of the mind which can feel and follow a hunch makes not only the
best gamblers, the best detectives, the best lawyers, the best judges, the materials of
whose trades are the most chancey because most human, and the results of whose
activities are for the same cause the most subject to uncertainty and the best attained
by approximation, but it is that same faculty which has guided and will continue to
guide the great scientists of the world, and even those august dealers in certitude,
the mathematicians themselves, to their most difficult solutions, which have
opened and will continue to open hidden doors; which have widened and will
ever widen man’s horizon.8
Hunch is therefore much more than a vague ability to solve hard cases in law; it is
rather a capacity allowing the best experts to reach a state of mind in which the “flash
of understanding” helps to solve the most difficult problems in any area of experience.
A detective, a mathematician, or a lawyer, if they are really good at what they
do, may hope for a hunch. A detective will connect apparently unrelated pieces of
information to explain a murder mystery. A mathematician will suddenly spot
a similarity between an algebraic problem to be solved and a well-known theorem
in category theory, which will lead to the sought-after proof. An experienced judge,
facing a hard case, will come up with a decision that is both compatible with the
sense of justice and defendable according to the methodological precepts of
jurisprudence.
These considerations are still quite sketchy. One would easily agree that some
detectives, mathematicians, or judges are better than other representatives of their
professions; that they are often able to find a surprising, if not brilliant, solution to
a problem they face. One may also admit, after Hutcheson, that any such display of
6
Ibid., pp. 274–276.
7
Ibid., p. 278.
8
Ibid., p. 279.
Intuition 13
amazing ingenuity should be attributed to the workings of a hunch, a kind of feeling,
which is a characteristic feature of the best experts only. However, we will not
achieve too deep an understanding of intuition in law if we stop here: a more
thorough analysis of hunch is called for.
The first step is to answer the question of whether hunch is indeed a uniform
capacity or rather an outcome of the operations of several different mechanisms. In
order to consider this problem, it is reasonable to look at a few concrete legal cases
that required something more than the use of typical intellectual tools for dealing
with legal questions. For many years, Hutcheson served as a federal judge in
Houston, Texas. In 1928, only a year before publishing “The Judgment Intuitive,”
he presided over the Hornby Castle case. “Hornby Castle was streaming up the
Houston ship channel. Ahead of the Castle were two vessels, a barge traveling slowly
in the same direction as the Castle, and the streamer Cody traveling down the
channel toward the barge and the Castle. Following customary practice, the Castle
signalled that it would pass the barge on the left and then cross the channel to pass
the Cody on the right. However, the Castle swung too wide in passing the barge and,
in danger of grounding itself upon the bank, collided with the Cody.”9
The facts of
the case were not disputed, but the parties adopted different legal qualifications of
the facts. The Cody’s counsel argued that the cause of the accident was negligence
on the part of the Castle’s pilot, who failed to abide by the given signals. The Castle’s
attorney, on the other hand, claimed that according to custom once a ship was in
danger the preexisting agreement was voided and avoiding the collision became the
duty of a ship not in danger (i.e. the Cody).10
Considering this case, Hutcheson concluded that when there is a conflict of
rights, the fault lies with the party that – through acting irresponsibly – caused the
danger in the first place, and he entered a judgment for the plaintiff.11
If one assumes
that this decision was based on a hunch, it may be defined as an ability to find
a solution to a complicated case that respects a rudimentary sense of justice. Such an
understanding of hunch is compatible with Hutcheson’s explicit declarations. He
observes that “the judge really decides by feeling, and not by judgment; by ‘hunching’
and not by ratiocination, and that the ratiocination appears only in the opinion.”12
And
he adds: “all of us have known judges who can make the soundest judgments and write
the dullest opinions on them; whose decisions were hardly ever affirmed for the
reasons which they gave. Their difficulty was that while they had the flash, the
intuitive power of judgment, they could not show it forth.”13
From this perspective,
the use of hunch consists in waiting for a clue from the unconscious; when we are
considering a complex legal case, we can finally say: the answer has appeared from
9
Cf. Zelden, 1989, p. 87.
10
Ibid., p. 87.
11
Cf. ibid., p. 87.
12
Hutcheson, 1929, p. 285.
13
Ibid., p. 287.
14 The Legal Mind
nowhere and we’re certain it is the right one as it “feels right.” Such an answer does not
need to be rational; it need not come with a ready-made justification. It is rather based
on the feeling that “this should be so” although it does not have to be accompanied by
the knowledge why this is the right solution.
Hunch can be understood in yet another way. Let us consider a well-known
precedent from English law.14
On September 26, 1928, Mrs Donoghue was spending
the evening with a friend of hers in Wellmeadow Cafe´ in Paisley, where the other
woman ordered a Scotsman ice cream float, that is ginger beer with ice cream,
which were served separately. Mrs Donoghue poured half of the beer over her ice
cream and ate some of it. Then, while she was pouring the remaining beer onto the
ice cream, a decomposed snail emerged from the bottle. The event caused health
problems in Mrs Donoghue: she was in a shock for a period of time and suffered
from gastritis. For that reason, she decided to file a claim against the producer of the
ginger beer, Mr Stevenson, demanding £500 in compensation. From the legal point
of view, the situation was complicated since Mrs Donoghue was not bound by
a contract with the owner of Wellmeadow Cafe´ (it was her friend who bought her
the Scotsman ice cream float) or with the beer manufacturer, and in accordance
with the law at the time, compensation for injury caused by defective products could
only be claimed on the basis of a legally binding commercial contract. Ultimately,
the case was heard by the House of Lords, where a decision was made, in a 3 to 2 vote,
in favor of Mrs Donoghue and she was awarded the compensation. Lord Atkin, one
of the judges, justified the decision as follows:
in English law there must be, and is, some general conception of relations giving
rise to a duty of care, of which the particular cases found in the books are but
instances. The liability for negligence . . . is no doubt based upon a general public
sentiment of moral wrongdoing for which the offender must pay. But acts or
omissions which any moral code would censure cannot, in a practical world, be
treated so as to give a right to every person injured by them to demand relief. In this
way rules of law arise which limit the range of complainants and the extent of their
remedy. The rule that you are to love your neighbour becomes in law, you must not
injure your neighbour; and the lawyer’s question, Who is my neighbour? receives
a restricted reply. You must take reasonable care to avoid acts or omissions which
you can reasonably foresee would be likely to injure your neighbour. Who, then, in
law, is my neighbour? The answer seems to be – persons who are so closely and
directly affected by my act that I ought reasonably to have them in contemplation as
being so affected when I am directing my mind to the acts or omissions which are
called in question.15
Thus, Lord Atkin argues that Mr Stevenson’s ex delicto liability toward Mrs
Donoghue is deeply rooted in the principles of English law, and more precisely,
in the (unwritten) rule that requires us to take proper care of persons who can be
14
Donoghue v. Stevenson [1932] AC 562.
15
Ibid.
Intuition 15
affected by our actions. What role could hunch have played in deciding the
Donoghue v. Stevenson case? The judges must have felt that someone should be
held responsible for Mrs Donoghue’s injury. It is worth noting, however, that
something else was of crucial importance in the decision made by the House of
Lords: the argument that Mr Stevenson’s liability was grounded in the structure of
English law; that the decision in Mrs Donoghue’s favor “fitted into” the larger puzzle
of the legal principles, rules, and precedents. That was also a kind of feeling, or
hunch: the sense of congruity between a particular decision and broadly defined
legal knowledge. A similar course of reasoning must be entertained by a great
mathematician or a smart detective: it is not enough to “feel” that a claim is true;
it must also “fit in” with the previously proved hypothesis; it is not enough to have
a strong feeling that person X is the murderer – such a hypothesis must bring the
available bits of information into proper order so that it creates a feeling
of a consistent whole. It must be added that such a feeling does not yet constitute
a justification for the decision made. Like any other feeling, it is subjective in nature,
which is why it must be integrated into the structure of rational argumentation to
have any public or objective weight.
Let us summarize the discussion. When Hutcheson speaks of a hunch, what he
has in mind is a capacity typical of brilliant experts: lawyers, mathematicians,
gamblers, detectives, etc. However, it seems that everyone can be assumed to have
a kind of hunch: even the least talented judge or mathematician, faced with
a problem, will “feel” that it is worth considering a particular solution. Ingenious
experts will simply have better “feelings.” What is more, the quality of a hunch must
depend on a person’s education and experience. Even a most talented mathematician
is never born with the ability to prove complex theorems of noncommutative
geometry; similarly, a talented student of law – perhaps a future judge of the
Supreme Court – cannot answer difficult legal questions without some consideration.
Hunch is something we gradually develop. Finally, when Hutcheson describes
the ways in which hunch works, he seems to be speaking of two different, though
related, abilities. One is the ability to make a quick, almost automatic judgment
concerning a given situation (e.g. which of the two parties in a legal case is right); the
other one is the capacity for finding an unexpected solution that “fits in” with the
already established facts, theories, or normative systems (i.e. with the available
knowledge). Psychologists use the term “intuition” to refer to the first ability, while
the latter is called “insight.”16
1.2 what is intuition?
“Intuition” is a word with a turbulent history. It comes from the Latin intueri,
“examine,” “consider.” Up until the eighteenth century, it was used to denote
16
Cf. Dorfman et al., 1996, p. 257.
16 The Legal Mind
a mental take on a given situation, examining things in one’s “mind’s eye.” In the
course of time, however, its use shifted away from the etymological source, first in
philosophy and theology, and then in other disciplines.17
Today, the word is used
with reference to the ability to understand something instinctively, without the need
for conscious reasoning.18
This semantic development of “intuition” can easily
become the cause of serious misunderstanding or conceptual confusion. For example,
there is so-called analytical (rational) intuition,19
especially in such disciplines
as mathematics and logic. The question of how we know that in a plane, given a line
and a point not on it, at most one line parallel to the given line can be drawn through
the point, can only be answered: “one can see it” or “it is evident.” The same
mechanism seems to be at work in more complex problems, though. Let us consider
the proof that is usually given at school for the Pythagorean theorem: a diagram is
usually drawn on which one can “see” that the square of the length of the hypotenuse
is equal to the sum of the squares of the lengths of the other two sides. There is
no complex mathematical argumentation here or any moving step by step from
premises to conclusions (even if the construction of the diagram that is used in the
proof takes several steps). The truthfulness of the claim that in every triangle the sum
of the lengths of any two sides is greater than the length of the other side and the truth
of the Pythagorean theorem are discovered by intuition in the sense that we can
“see” that they are correct; these propositions are “evident.”
Some also speak of phenomenological intuition.20
In simple terms, it can be
defined as the ability to grasp that which is essential in phenomena, i.e. in the objects
of a person’s conscious perception, whether it be an item of furniture (e.g. a threelegged
table), a relation between people (e.g. love), or a legal institution (e.g. a car
sales contract between person X and person Y). According to phenomenologists, one
can discover a priori elements in every phenomenon, i.e. ones that are independent
of experience. We recognize an object as a table because it fits in with the a priori
form of a table: if it did not have a table top, we would categorize it as something else.
Similarly, a relation between two people that is based on egoism and reluctance to
make sacrifices for another person can hardly be considered love, as this feeling has
its particular a priori form too. A legal contract also has such a form: if person Y was
only playing a joke on person X by saying that they will sell them their Porsche for
$500, we would not conclude that a promise has been made, and hence there would
be no binding contract. Well-trained phenomenological intuition helps us to discover
that which is a priori in phenomena, which constitutes their invariant forms.21
The meanings of analytical and phenomenological intuitions are based on the
etymological source of the word; in this sense, intuition is the ability to perceive
17
Cf. Simpson & Weiner, 1989.
18
Cf. Stevenson & Soanes, 2006.
19
Cf. Tieszen, 1989.
20
Cf. Levinas, 1973.
21
Cf. Kaufmann, 1986; Stelmach, 1991.
Intuition 17
something with one’s mind’s eye, whether it is about the truthfulness (evident
nature) of a claim or the a priori structures of phenomena. However, such an
approach is unfamiliar to a psychologist or even a “naturalized” philosopher.
Although they may admit that the phenomenon of analytical intuition is real, they
will contend that it should be given a different, less confusing name; perhaps, they
could even concede that there is phenomenological intuition, but – they will argue –
it is a somewhat mysterious ability, just as the a priori structures that phenomenologists
talk about. Still, we can respond to these reactions by saying that psychologists
and more empirically inclined philosophers had better treat their opponents’ views
with more caution and look at them with greater sympathy. After all, both the
advocates of analytical intuition and phenomenologists want to account for certain
aspects of our everyday experience, even if they approach the task with sophisticated
and slightly artificial conceptual frameworks. They may be doing that in a rather
hasty manner, without due respect for the principles of empirical methodology, and
hence without proper justification. However, the fact is that they employ the
concepts of analytical and phenomenological intuitions in order to discover some
truths about human cognitive processing.
On the other hand, the conceptual confusion cannot be regarded as a property of
a well-constructed theory. The claim that a lawyer can employ different kinds of
intuition – analytical, phenomenological, and psychological ones – may be justifiable
at the level of metatheoretical considerations but not in developing a coherent
conception of legal reasoning. Therefore, in the discussion that follows I will employ
the term in its psychological sense, albeit without losing sight of those capacities of
the human mind that are often referred to as analytical or phenomenological
intuition (though I will not use these terms).22
What is, therefore, intuition in the psychological sense? In view of the multiplicity
of approaches to intuitive cognition in contemporary cognitive science, we should
not expect to formulate one uncontroversial definition of “intuition.” What is more,
that would be a short-sighted approach that would lead to oversimplifying the
problem and incorrect conclusions. What seems more reasonable is to seek
a more general characterization of intuitive cognition by indicating some of its
characteristic properties. Such an approach should enable us to incorporate various,
sometimes quite different, understandings of intuition in our model.
Psychologists seem to agree that intuition is an unconscious mechanism.23
However, “unconsciousness” is an ambiguous term, and it is Sigmund Freud who
is, in a large measure, to be blamed for that. In his early texts, he used two terms –
“the subconscious” (das Unterbewusste) and “the unconscious” (das Unbewusste) –
interchangeably to refer to memories, feelings, and other mental phenomena that
are beyond a person’s conscious control, claiming that they represent the main
22
Cf. Chapter 2, where I discuss the role of imagination in legal reasoning.
23
Cf. Gigerenzer, 2007.
18 The Legal Mind
source of psychological disorders. With time, in order to prevent confusion, he
abandoned the first one and only used the concept of unconsciousness.24
Of course,
when psychologists speak of the unconscious nature of intuition, they do not refer to
Freud’s theory. The feeling that enables a mathematician to solve a complex
arithmetic problem and that helps a judge to decide a difficult legal case has little
to do with deeply hidden memories that haunt our nightmares.
Another understanding of unconscious mechanisms, and one which is commonly
adopted in the cognitive sciences, sees them as operating on subliminal stimuli.25
Those stimuli are too weak, too short, and lack the intensity to be perceived and
become the object of conscious reflection, but they can influence our behavior.
Unconscious cognition has been the subject of discussion since 1957, when James
Vicary, a marketing specialist, announced that he had managed to increase the sales
of Coca-Cola and popcorn at the cinema in Fort Dix (New Jersey) by displaying the
texts “Drink Coca-Cola” and “Eat popcorn” for a very short time.26
Today, Vicary’s
“study” is widely recognized as a fraud; at the same time, though, numerous
replicable experiments show that – under special circumstances – subliminal
stimuli can influence the decisions people make.27
However, intuition cannot
operate exclusively on such stimuli. The nature of the problems that talented judges
or brilliant mathematicians intuitively solve does not allow much room for the
occurrence of subliminal signals. Considering a difficult legal case, such as the
Hornby Castle case, is a far cry from watching a film in which a smart marketing
expert displays a subliminal message such as “Drink Coca-Cola.” Thus, even if some
intuitive judgments are (partly) based on subliminal signals, it is not the source of
recognizing intuition as an unconscious mental mechanism.
According to a third understanding of unconscious processes, these are processes
that we are not aware of, but that could – at least potentially – become the object of
our conscious reflection. In his well-known book The User Illusion, Tor
Nørretranders claims that in every second we only process 16 bits of information
out of the 11 million bits that reach our brains from the senses.28
Even if these
estimates are based on unconfirmed experimental data and on creative simplification,
it is commonly accepted that we are conscious of very few of the processes that
constantly take place in our brains.29
This fact is borne out by numerous studies and
theories which show that the unconscious mind has a ubiquitous and powerful
influence on the human psyche, from learning to decision-making.30
It is precisely
in this sense that intuition is an unconscious mechanism: it is beyond our control,
although what it does for us could potentially (at least in large part) be effected
24
Cf. Bargh & Morsella, 2008.
25
Cf. ibid. See also Lakoff & Johnson, 1999.
26
Karremans et al., 2006, p. 792.
27
Cf. ibid., p. 793f.
28
Cf. Nørretranders, 1999.
29
Cf. Bargh, 2017.
30
Cf. Bargh & Morsella, 2008.
Intuition 19
consciously. As a rule, intuition does not operate on stimuli that cannot become
conscious but on ones that have not become conscious. It is not a mysterious ability
that surpasses sophisticated reasoning; it is quite an ordinary process that takes place
at the backstage of our conscious thinking and supports it with clues in our problemsolving
activities.
There are crucial differences between intuition and meticulous reasoning.
Conscious thinking is relatively slow and it requires concentration, but it offers
a sense of free choice.31
By contrast, intuition “operates automatically and quickly,
with little or no effort and no sense of voluntary control.”32
Let us use the so-called
Wason selection task to illustrate these differences.33
There are four cards on the
table. Each of them has a word printed on one side, specifying whether a given
person is an adult or a minor, while the word on the other side informs us whether
the person drinks beer or lemonade. The cards are shown in such a way the we can
only see one side of each card:
minorlemonadeadultbeer
Now, let us consider the following rule: “If a person drinks beer, he or she should
be adult.” Which one(s) of the four cards should be turned over to check if the rule
was broken? One would answer,34
without much hesitation, that the cards with the
words “beer” and “minor” should be turned over. One would not be concerned with
adults and those who drink lemonade, but would want to check whether the beer
drinker is an adult and whether the minor drinks lemonade rather than beer.
It is worth noting that this is a logical problem and, in order to solve it, we need to
understand the nature of the so-called material implication: “If p, then q.” The
implication is false in only one case: if its antecedent (p) is true and its consequent
(q) is false. If the rule says, “If a person drinks beer, he or she should be adult,” it will
be false (broken) only when on one side there is information that the person drinks
beer and, on the other side, information that the person is a minor. That is why, in
this task, we should look at the other side of the card that says “beer” (since if the
word on the other side is not “adult,” then the rule is broken) and at the other side of
the card with the word “minor” (since if the word on the other side is “beer,” then the
rule is broken).
31
Kahneman, 2011, p. 21.
32
Ibid., p. 20.
33
Cf. Wason & Shapiro, 1971.
34
Statistically speaking; cf. Wason & Shapiro, 1971.
20 The Legal Mind
The point is that we do not engage in any conscious reasoning while solving this
version of the Wason selection task! We do not start by observing that the rule
“If a person drinks beer, he or she should be adult” has the form of a material
implication; we do not determine what is the antecedent and what is the consequent
here; we do not reflect on when the implication is false; and finally, we do not
conclude that the rule is broken only when its antecedent (“The person drinks beer”)
is true and the consequent (“The person is an adult”) false. The conviction that the
cards with the words “beer” and “minor” should be turned over is not a result of
reasoning: it appears quickly and automatically, beyond our conscious control,
almost with no mental effort on our part. It is an intuitive judgment.35
Let us now consider an alternative version of the selection task. Suppose the cards
have the word “yellow” or “brown” on one side, while the other side has an odd or
even number printed on it, and the cards are arranged as follows:
yellow6brown3
The rule governing this example says: “If a card has the word ‘brown’ on one side, then
there is an even number on the other side.” In this case, intuition will also provide us
with an immediate answer. The problem is that in about 90 percent of cases the answer
is wrong.36
Most of us will say that we should turn over the card with the word “brown” or
perhaps two cards: the one with the word “brown” and the one with the number 6.
However, the correct answer to this problem, which is analogous to the first version of the
Wason selection task, is that we should check the cards with the word “brown” and with
the number 3, since the rule will prove false only if a card has the word “brown” on one
side and an odd number on the other. The mistake produced by intuition can, obviously,
be corrected but that can only be done by means of slow and focused reasoning.
The speed of intuition can be ascribed to the fact that it is based in large part on
affective processes.37
An intuitive judgment is an emotional reaction to a state of
affairs, such as a problem that we face. Although there is no common agreement as
to the form of the mechanism responsible for such reactions, there are compelling
theories to account for it. The most famous one is the somatic marker hypothesis put
forth by Antonio Damasio.38
Damasio’s hypothesis was formulated in the context of
35
Naturally, this description does not apply univocally to every single person. Someone who has had the
opportunity to consider similar tasks in the past or is a well-trained logician may approach the problem
in a different way.
36
Cf. Wason & Shapiro, 1971.
37
Cf. Zajonc, 1980.
38
Cf. Damasio et al., 1996.
Intuition 21
research into the process of making social decisions by patients with injuries to the
ventromedial prefrontal cortex. Such patients often manifest “asocial” behavior
despite the fact that they are normal in terms of intellectual functioning (such
abilities as memory, language, and perception remain within normal limits). They
cannot make proper use of emotions and feelings to guide their behavior. According
to Damasio, the cause of the disorder lies with the fact that such patients have
a disrupted access to so-called somatic markers. In a situation that calls for a complex
decision-making process, a normal brain activates somatic states that “categorize”
the possible ways of behaving as good or bad. This information is (consciously or
unconsciously) used by the organism to take a favorable course of action.39
Importantly, somatic markers develop with experience, which we acquire in social
interactions: they are learned rather than innate. They help us to make unconscious,
intuitive decisions that can be rational:
The quality of one’s intuition depends on how well we have reasoned in the past; on
how well we have classified the events of our experience in relation to the emotions
that preceded and followed them; and also on how well we have reflected on the
successes and failures of our past intuitions. Intuition is simply rapid cognition with
the required knowledge partially swept under the carpet, all courtesy of emotion
and much past practice.40
Damasio highlights an important fact here: good intuition is an effect of training.
Most people give a correct answer immediately in the version of the Wason selection
task that is based on the rule “If a person drinks beer, he or she should be adult.” This
can be explained by the fact that they use well-trained intuition. After all, it is from
our earliest years that we have to deal with the social norm that prohibits the
consumption of alcohol by underage individuals, which is why we can “automatically”
understand it and decide whether it is violated. By contrast, the rule “If a card
has the word ‘brown’ on one side, then there is an even number on the other side”
has little to do with our everyday experience. Our knowledge of the world, which we
have acquired over the course of many years, simply does not include information
about the relationship between color and number parity; but it does include
information about the link between age and drinking alcohol.
The fact that our intuition is based on our previous experience has an important
bearing on the discussion on intuitive decisions in such disciplines as law. An
average person who has not gone through proper legal training is not able to make
quick and correct decisions even in relatively simple legal problems. From that
person’s perspective, such problems are more or less like a Wason selection task
based on the rule “If a card has the word ‘brown’ on one side, then there is an even
number on the other side.” Of course, just as in the case of the selection task,
intuition will provide that individual with some clue, but they cannot expect it to be
39
Cf. Damasio et al., 1991.
40
Damasio, 2006, p. xix.
22 The Legal Mind
the right answer. By contrast, an experienced lawyer, who has not only obtained
adequate education but has also engaged in legal practice for many years, is in a far
better situation here: intuition will usually provide them with the correct solution. In
other words, an experienced lawyer is an expert in their discipline, just like
a physician with adequate experience or a carpenter who has made items of wood
for many years. In each case, their expert knowledge concerning, respectively, legal
issues, diagnosing and treating patients, and making wooden objects has, as a result
of a long-term training, been “swept under the carpet,” thereby becoming intuitive.41
This analysis shows that intuition is unconscious (the processes that lead to
providing an answer to a given problem take place beyond one’s consciousness,
with the answer appearing out of “nowhere”), fast (in comparison with conscious
reasoning), automatic (intuitive judgments emerge spontaneously; they cannot be
intentionally controlled), and based on experience (intuition draws on the knowledge
that we have acquired in our interactions with the environment). The two versions of
the Wason selection task suggest one other thing: intuition can be wrong.
Nevertheless, it is hardly surprising that intuition can suggest incorrect answers
concerning issues in which we have not acquired adequate experience, for example
when we deal with the rule “If a card has the word ‘brown’ on one side, then there is
an even number on the other side” or when a lay person is faced with a complex legal
problem. The fact that our intuition leads us astray regarding issues that we have
little knowledge or experience in is rather natural. However, studies show that even
experts’ intuitive judgments can be wrong in certain circumstances. Let us consider
this phenomenon now.
1.3 intuition’s mistakes
The human mind is a device that has to deal with an extremely complex world,
something of a tough challenge for two reasons: on the one hand, it is impossible in
a decision-making process to take into consideration all of the relevant items of
information that we have managed to acquire. On the other hand, we can always
assume that we have no access to numerous facts that should have a bearing on the
decision we are making. In other words, there are two respects in which we are quite
different from Laplace’s omniscient demon: neither can we know everything, nor
can we actively take advantage of everything we know or could know.42
That would
simply be beyond our cognitive capacity.
For example, let us imagine a judge who is to decide upon a simple case
concerning compensation liability resulting from a failure to comply with
a contract. The judge would have to answer the question of whether the contract
was concluded in the first place. This may seem to be a simple task, especially when
41
Cf. Kahneman & Klein, 2009.
42
Cf. Heller, 2013.
Intuition 23
the plaintiff presents a copy of the contract that is signed by both parties. However,
Laplace’s inquisitive judge should ascertain whether the defendant’s signature is
authentic. To this end, the court has to call in an expert witness with adequate
expertise to examine the signature. The problem is that expert witnesses are sometimes
wrong; after all, they are also human beings, who are susceptible to error, have
their own weaknesses, and employ imperfect theories and technologies. Laplace’s
judge would have to take this fact into consideration; yet, it would be of little help to
call in an infinite number of expert witnesses and to conduct a thorough analysis of
the available graphological theories, with all their underlying assumptions. The kind
of certainty that this judge seeks is unattainable. Even if the plaintiff and the
defendant both admitted that they had concluded the contract, Laplace’s judge
would still have to allow for the fact that the defendant’s declaration could be a result
of psychological coercion. This time too, the judge could call in an expert witness,
but again with a similar result. The same is true about the other issues that the judge
would have to consider: determining the full contents of the contract, confirming
that it has not been fulfilled, estimating the extent of the loss, etc. None of these
questions, whether factual or normative, can be answered with absolute certainty;
there will always be additional items of information that have not been acquired but
that might prove relevant to the problem under consideration.43
Although real judges have little to do with Laplace’s demon, they are in a fairly
good situation as no one expects them to make instant decisions. Of course, we
would prefer quick legal proceedings, but it would be unreasonable to expect
instantaneous court decisions made without evidentiary hearing or adequate deliberation.
By contrast, most of the decisions we make on a daily basis are different.
Nobody engages in a several-days long, meticulous analysis that would require
gathering a lot of data while doing the shopping at a store, choosing a restaurant
for a dinner with friends, deciding whether to go there by tram or on foot, or
evaluating the credibility of a passerby asked about the way. Such decisions must
be taken relatively quickly, since it is only in this way that we can effectively function
in a social environment.
Evolution has coped with this problem by providing our minds with heuristics,
a kind of “mental shortcut.” Instead of taking into consideration all the information
that could prove relevant to solving a given problem, thereby wasting time on
gathering and analyzing it, in our decisions we rely on a few selected facts.44
We
use this strategy very frequently, both consciously and unconsciously. It is also
employed in law, and in a much institutionalized manner at that: after all, legal
presumptions are examples of heuristics. For example, in Polish law the presumption
of paternity leads to the acceptance of a given claim without determining all of
the potentially relevant facts (e.g. no DNA paternity testing is done), based on only
43
Laplace’s judge is different from Dworkin’s Judge Hercules: the former knows everything about facts,
while the latter knows everything about the law. Cf. Dworkin, 2013, p. 132ff.
44
Cf. Simon, 1956; Gigerenzer, 2001.
24 The Legal Mind
some of the facts (e.g. the fact that the child is born within nine months after the
termination of the marriage). However, these are examples of highly abstract and
consciously applied heuristics. And the human mind, whose time and energy
resources are limited, also needs to employ heuristics at a more elementary level
of experience in unconscious decision-making.
For example, from the evolutionary point of view, it is reasonable to make
decisions on the basis of data that can be easily retrieved from memory. Studies
show that what we remember particularly well is, inter alia, recurring events
(whether we only witnessed them or were their participants) and those associated
with strong emotional reactions.45
It is easy to observe that such events must be
particularly important for the organism. We have to cope with recurring events
much more frequently than with untypical situations, while the circumstances that
trigger strong emotional reactions are by definition relevant to our well-being. It can
be argued then that information that can be easily recalled should play a significant
role in our fast and unconscious decision-making as it relates either to the problems
we face most frequently or to problems that are particularly crucial to our survival. In
the psychological literature, this decision-making mechanism is referred to as the
availability heuristic.46
Another mechanism that the evolutionary perspective can
shed light upon is our reliance on that which is representative of a certain type of
action or object in our unconscious decision-making. Again, by definition, we
usually deal with typical situations. Therefore, from a statistical point of view, our
first, unconscious reaction to any problem should be based on the assumption that
the problem is typical or very similar to a prototypical situation. In psychology, this
decision-making mechanism is known as the representativeness heuristic.47
Finally,
it can be argued that quick and unconscious decisions cannot ignore the “immediate
surroundings” of a given problem. Such contextual information will, most
probably, turn out to be important in our search for the solution. If particular
items of information reach the brain (almost) at the same time, it must be assumed
that this is not a coincidence. A special type of this mechanism is often referred to as
the anchoring and adjustment heuristic.48
Intuition is based on (availability, representativeness, and anchoring and adjustment)
heuristics, which is why it can provide us with quick solutions to our
problems. However, there is a price that we have to pay for this speed.
Psychological studies – in particular those of Kahneman and Tversky – have
demonstrated that our trust in intuitive judgments may result in systematic
errors.49
One of them is the so-called anchoring effect: while making quantitative
estimates, people unconsciously rely on the “anchor,” i.e. a readily available number
45
Cf. Kensinger, 2009.
46
Cf. Kahneman, 2011.
47
Cf. ibid.
48
Cf. ibid.
49
Cf. Tversky & Kahneman, 1974, p. 1974.
Intuition 25
that does not have anything to do with the problem at hand. In their classic
experiments, Kahneman and Tversky asked the participants to estimate what percentage
of the UN members were African countries. First, however, the participants
were to decide whether the figure was greater or smaller than the number indicated
by a spinning wheel. The spinning wheel was “tweaked” to indicate either 10 or 65. It
turned out that the participants who had drawn 10 on the spinning wheel made the
average estimate that about 25 percent of the UN members were African countries;
by contrast, those who had drawn 65 averaged out at a much higher estimate, about
45 percent. This and other studies suggest that our intuitive judgments may highly
rely on irrelevant, random quantitative data.50
The anchoring effect can also be observed in law. Chris Guthrie, Jeffrey
Rachlinski, and Andrew Wistrich had a group of judges consider the following
case. The plaintiff was hit by a truck belonging to the defendant company. It was
determined that the cause of the accident was the truck’s faulty brakes; what is
more, the defendant company had not performed the obligatory periodical technical
checkups of the truck. Following the accident, the plaintiff was hospitalized
for several months and had been confined to a wheelchair ever since. Prior to the
event, he had been an electrician of good repute and had a large number of regular
clients. In court, he claimed damages for the lost income, in addition to the costs of
the medical care and the harm he had suffered. However, he did not specify the
amount he wished to claim from the defendant. The judges who participated in
the experiment were to decide on the amount of the compensation that the
plaintiff should receive. They were divided into two groups: judges in one group
were provided with the above description of the facts; in the other group, the
description additionally included the information that the defendant had filed
a motion to dismiss the claim on the grounds that the losses incurred by the
plaintiff did not exceed US$75,000 and that the claim should therefore be considered
by a different court of law. The defendant company’s motion was obviously
unfounded since the losses incurred by the plaintiff with all certainty exceeded the
amount of $75,000. Yet, it turned out that adding the information with this number
to the description of the facts had a significant impact on the participants’ average
estimate of the due compensation. Whereas the judges in the first group were
inclined to award the plaintiff an average amount of $1,249,000, those in
the second group must have been “anchored” to the figure 75,000 and decided
to award him only $882,000 on average.51
In their classic 1974 study “Judgment under certainty: Heuristics and biases,”
Kahneman and Tversky discuss two other types of systematic errors that can result
from reliance on intuitive judgment.52
One of them is connected to the use of the
representativeness heuristic. The participants of an experiment conducted by
50
Cf. ibid., p. 1128.
51
Cf. Guthrie et al., 2000, p. 2018.
52
Cf. Tversky & Kahneman, 1974.
26 The Legal Mind
Kahneman and Tversky were to order, from the least to the most probable, several
scenarios of the future of a young woman named Linda, who was 31, single, talkative,
and very intelligent. The woman was a philosophy graduate who had been an activist
against discrimination and for social justice and had taken part in demonstrations
against nuclear power. The scenarios to be arranged included: (a) Linda is an activist
in the feminist movement; (b) Linda is a social security worker who helps people
with mental disorders; (c) Linda is a member of the League of Women Voters; (d)
Linda is a bank teller; (e) Linda is an insurance salesperson; (f) Linda is a bank teller
and an activist in the feminist movement.53
Kahneman and Tversky were shocked to
find out that all the participants considered it more probable that Linda would be
a bank teller and an activist in the feminist movement than that she would be a bank
teller only. This is an obvious fallacy since the probability of two independent events
occurring together is lower than the probability of either one of them occurring
alone. This fallacy can be accounted for with the hypothesis that intuition is based
on the use of the representativeness heuristic: Linda’s traits are representative of
a feminist activist, and not of a bank teller, which is why the scenario of her future
life in which she is active in the feminist movement appears so overwhelming that
we ignore the fundamental laws of probability.
Errors of this type are also committed by lawyers in connection with legal
problems. In one study, attorneys were asked to estimate the chances that a given
legal case (Jones v. Clinton) would end in a particular way: with judicial verdict,
dismissal, settlement, withdrawal of the legal action, etc. One of the other options
was “other than a judicial verdict.” It turned out that the subjects considered the
probability of a settlement between the two parties to be higher than that of an
outcome “other than a judicial verdict,” although the latter option includes the
former one, along with several others (dismissal, withdrawal, etc.).54
It can be argued
that this error stemmed from the fact that some of the characteristics of the Jones
v. Clinton case were representative of cases that usually end in settlement; by
contrast, there are no features that would be representative of cases whose typical
outcome is “other than a judicial verdict.”
Another type of fallacy in the use of intuition that Kahneman and Tversky
demonstrated in their study is a consequence of the application of the availability
heuristic. As already mentioned, it consists in estimating the probability of a certain
type of event on the basis of how easy it is for us to recall its instances. For example,
when speakers of English are asked whether there are more English words beginning
with the letter “r” or more with “r” as the third letter, they usually choose the first
answer, which is incorrect, most probably because it is easier to recall words
beginning with the letter “r” than those in which “r” is the third letter.55
Lawyers
are also susceptible to this type of error in their legal practice. Let us consider the
53
Cf. Kahneman, 2011, p. 211.
54
Peer & Gamliel, 2013, p. 116.
55
Cf. Tversky & Kahneman, 1974, p. 1127.
Intuition 27
following example.56
The participants of an experiment were given a description of
a legal case concerning a car accident caused by an intoxicated driver. The description
included both the prosecutor’s and the attorney’s lines of argumentation. One
half of the subjects received the description of the attorney’s argumentation written
in vivid and concrete language, with the attorney’s argumentation described in
a more abstract way, while the other half of the subjects received descriptions of
the opposite kind. It turned out that the two groups of subjects gave similar verdicts
immediately after reading the files; however, when they were asked to deliver
a verdict again after 48 hours, the participants had a tendency to favor the party
whose argumentation was written in a more vivid and concrete language. In other
words, those who received a vivid version of the prosecutor’s line of argumentation
tended to find the defendant guilty, while those who read a more concrete description
of the attorney’s reasoning were more inclined to find the driver not guilty.57
The source of this effect is often ascribed to the availability heuristic: it is easier to
recall a more vivid and concrete description of an event than one using abstract
language, full of technical terms and statistics.
Besides these three types of error – associated with the anchoring effect and the
representativeness and availability heuristics – the literature describes other phenomena
where intuitive judgments go awry, and also in the legal context. They
include: the hindsight bias, the framing effect, and the egocentric bias.58
Does this
mean that a lawyer cannot trust their intuition? An affirmative answer to this
question would be a gross misunderstanding. It can be hypothesized that the errors
in deciding legal cases reported in the literature, committed by both lay persons and
individuals with a legal education and long experience in legal professions, are more
indicative of the nature of the tasks given to experiment participants than of the
(un)reliability of intuitive cognition. Let us consider the cognitive mechanisms
described by Kahneman and Tversky (e.g. the availability heuristic). When we are
asked the question as to which city is larger, Chicago or Baltimore, we will immediately
choose the first. The reason is simple: Chicago is more “available” as we have
heard a lot about it and we know that it is a great metropolis with long traditions,
while for most of us “Baltimore” is only a label associated with little or no knowledge.
It is worth repeating: such a mental shortcut – that the city which we have heard
more about and which is often dubbed the capital of blues and jazz, and associated
with Al Capone, the Sears Tower, and Michael Jordan’s Chicago Bulls is larger – is
quite reasonable. In other words, it is easier for us to retrieve from memory that
which is more vivid in our experience and more important for our actions in the
world.
There is a similar situation with the other mental shortcuts that we employ in
our intuitive reasoning. For instance, the representativeness heuristic provides
56
Reyes et al., 1980.
57
Cf. ibid.
58
Cf. Hastie et al., 1999; McCaffery et al., 1995; Langevoort, 1998.
28 The Legal Mind
us with suggestions on the basis of certain schemas or prototypes: if a given
situation is sufficiently similar to the typical circumstances in which we are in
danger, intuition will tell us that we should be particularly careful.59
If a person
has traits that are typical of nice and friendly people – they smile a lot, tend to
offer help, and are polite – we will draw the intuitive conclusion that there is
nothing dangerous about them. Of course, we can be wrong in both cases.
A “dangerous” situation may prove to be a joke played on us by our friends (who
play on our intuitive reactions), while a friendly stranger may turn out to be
a psychopath killer. The point is that such mistakes are relatively infrequent;
they are frequent and systematic only in relation to problems that are themselves
untypical, at least from the perspective of the evolution of the human mind (e.g.
when we face a problem that calls for statistical analysis or one that has little to
do with our everyday problems). In other words, intuition is a very useful
cognitive ability that usually provides us with useful, if not perfect, suggestions
on how to tackle a particular problem.
Once more, it must be stressed that good intuition is a result of experience and
training. We cannot expect correct intuitive judgments concerning legal matters
from a person who has had little to do with law; in a similar vein, a person with
almost no experience in carpentry cannot count on useful intuitions regarding the
restoration of an old wooden staircase. Given this, we can conclude that legal
intuition is a real phenomenon; however, it is not a mysterious ability: a lawyer
has legal intuition just as a mathematician has mathematical intuition and
a physician medical intuition. Their intuitions use the same neural architecture,
which is, however, filled with different contents as a result of a long process of
training and experience.
1.4 insight
“Eureka!” This is perhaps the most famous exclamation in history. Everyone knows
the story from school: King Hiero of Syracuse had commissioned his goldsmith to
make a votive crown. The goldsmith, however, was accused of stealing some of the
king’s gold and replacing it with silver. “Furious that he may have been cheated,
Hiero ordered Archimedes to investigate the matter. To ponder over the problem,
Archimedes went to the public baths, where he noted that the more his body sank
into the water, the more water was displaced. . . . Overwhelmed with joy, he leaped
out of the bath and rushed home naked, shouting: ‘Eureka! Eureka!’”60
Once at
home, he made two objects – one of gold and one of silver – of the same weight as the
king’s votive crown and observed how much water was displaced by each. It turned
out that the volume of water displaced by the new crown was greater than the
59
Cf. Kahneman & Tversky, 1972.
60
Smo´lski, 2001, p. 45.
Intuition 29
volume of water displaced by the golden object and smaller than the volume
displaced by the silver object. Here was definitive proof of fraud.
It is easy to prove that nothing like this could have happened. A typical ancient
Greek votive crown had an average volume of about 37 cm3
. When placed in
a container of 20 cm in diameter, it would have raised the level of water by about
1.2 mm. A crown of the same weight but comprising 80 percent gold and 20 percent
silver would have a volume of about 43 cm3
and would raise the level of water by
about 1.4 mm. If we allow for the meniscus (the curve at the surface of the water), the
difference between these volumes does not exceed the measurement error. Simply,
Archimedes could not have applied this method to prove that any fraud had taken
place; as argued by historians, he had much better methods at his disposal to do so
anyway.61
Thus, it is more than probable that the story which has Archimedes running
naked in Syracuse and crying “Eureka!” never actually took place. This fact is of little
importance, however, since Archimedes crying “Eureka!” is a beautiful metaphor
describing the situations in which we unravel nature’s greatest mysteries.
Archimedes may not have run naked in Syracuse, and Isaac Newton may not have
been struck by a falling apple; yet, there are numerous verified stories in the history
of science describing how innovative ideas suddenly arose in the minds of thinkers in
an illuminating moment of understanding. It suffices to recall how Friedrich August
Kekule´ discovered the structure of benzene after having a dream of a snake eating its
own tail; how Henri Poincare´ found the solution to a vexing mathematical problem
when he put his foot on the step of a horse-drawn omnibus; or how Werner
Heisenberg, plagued with hay fever, formulated the theory of quantum mechanics
during his trip to the island of Helgoland.
Such moments of illumination or insight are also experienced by lawyers. At the
beginning of the chapter, we made reference to the Donoghue v. Stevenson case, in
which, despite the lack of explicit legal regulations, the House of Lords decided to
hold Mr Stevenson responsible for the losses incurred by Mrs Donoghue on the
grounds that such a decision was compliant with the broader context of English law.
The verdict broke with a long tradition according to which liability for defective
products could only follow from a legal contract between two parties. But that would
not have been possible if it had not been for a fundamental revision of the existing
pattern of reasoning, which in turn must have required adopting a completely new
perspective on the problem under consideration. In psychological terms, the judges
who considered the case must have had an intuitive feeling that rejecting Mrs
Donoghue’s claim would be unjust. However, something else was needed for the
moral judgment to become a law: an insight that would incorporate such a verdict
into the complex legal “puzzle” of principles, rules, and precedents.
61
Cf. ibid., p. 46.
30 The Legal Mind
Almost all groundbreaking judicial verdicts can serve as examples of the
mechanics of insight in legal reasoning. Let us consider the Van Gend en Loos
case of 1963, which was a landmark case in the development of European law.62
The
Dutch company Van Gend en Loos imported urea formaldehyde from Germany to
the Netherlands. The Dutch customs charged the company a higher tariff due to
a change in the classification of the substance. The company paid the increased
customs but, at the same time, took legal steps in order to obtain a refund. In court,
Van Gend en Loos argued that the Dutch customs regulations were contrary to
Article 12 of the Treaty of Rome, according to which “Member States shall refrain
from introducing between themselves any new customs duties on imports or exports
or any charges having equivalent effect, and from increasing those which they
already apply in their trade with each other.”
The European Court of Justice (ECJ) was faced with a serious problem when it
considered the case. In accordance with the long-accepted traditional doctrine,
international treaties were binding for member states only and did not apply to the
citizens of the states. On the other hand, if Article 12 of the Treaty of Rome could
only be cited by European Economic Community (EEC) member states in cases
against other member states, the regulation would, in many cases, turn out to be an
empty phrase. In psychological terms, it can be argued that the judges of the ECJ
must have experienced two opposing intuitions: one following from their legal
education, which suggested that Van Gend en Loos could not directly cite Article
12, and a moral one, which suggested that the Dutch authorities’ behavior was
unjust.
It would be difficult to ascertain the actual reasoning on the part of the judges of
the ECJ in this case; the best that we can do is to attempt to reconstruct it on the basis
of the grounds provided along with the verdict. The first point raised in the grounds
is that in order to answer the question whether Article 12 of the Treaty is directly
effective in national laws, “it is necessary to consider the spirit, the general schema
and the wording of [the Treaty].”63
What is intriguing here is the order of the sources
of evidence adduced by the Court, the reverse of the usual hierarchy, according to
which the point of departure in interpreting the law is the language, followed by
systematic arguments, cited when in doubt, and only then those pertaining to “the
spirit.” This suggests that the Court decided to adopt a novel, revolutionary perspective.
Further passages of the judgment seem to corroborate this hypothesis, stating
that the “objective of the EEC Treaty . . . implies that [it] is more than an agreement
which merely creates mutual obligations between the contracting parties.”64
The
Court’s argumentation leads to the conclusion that the “European Economic
Community constitutes a new legal order of international law for the benefit of
62
Cf. ECJ February 5, 1963, Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen
[1963] ECR 1.
63
Ibid.
64
Ibid.
Intuition 31
which the states have limited their sovereign rights, albeit within limited fields, and
the subjects of which comprise not only Member States but also their nationals,”
which is why “Article 12 must be interpreted as producing direct effects and creating
individual rights which national courts must protect.”65
This argumentation must
have been preceded by an adequate insight that enabled the judges to discern the
possibility of reconciling the intuitive sense of justice with the requirements following
from Western European legal culture. That insight led to a fundamental revision
of the understanding of European Community law.
These examples may suggest that insight is only experienced by those who make
great discoveries or groundbreaking decisions. Such a view would be far from the
truth though. After all, it would be strange to claim that a particular psychological
phenomenon only occurred in some people and in very rare situations at that. It
should rather be assumed that insights are very common, but only some of them –
those concerning particularly important problems or suggesting revolutionary solutions
– find their place in history books. In other words, the mental mechanisms
employed so effectively by the judges in the Donoghue v. Stevenson and Van Gend
en Loos cases must also be used in attempts to solve much less spectacular, mundane
problems. A student who is considering a civil law case as part of an examination
might suddenly realize that the plaintiff’s claim should be based on regulations
concerning unjust enrichment instead of those covering breach of contract. There is
no reason why such a “flash of understanding” should not be called an insight, even
if the decision to cite unjust enrichment would be obvious for an experienced
lawyer. An insight can apply to any type of problem: mathematical question, crossword
puzzles, writing an essay, understanding clever jokes, or even how to tackle an
unruly dog. Such small “Eureka moments” are part of our everyday experience.
What is an insight then? How to define it? Just as with intuition, we could refer to
the various, not always compatible, understandings of the concept. Most, though not
all, psychologists agree that an insight has, to a greater or lesser extent, three
characteristics. First of all, it appears suddenly and is accompanied by a subjective
experience of surprise or amazement. Secondly, a typical insight occurs in a deadend
situation (after a period of unsuccessful attempts to solve a problem). Thirdly,
solving a problem on the basis of an insight consists in its restructuring, or viewing it
from a new perspective.66
It must be noted, however, that this characterization is
sometimes questioned as it excludes certain important psychological phenomena,
especially those that do not involve a cognitive impasse. For example, let us suppose
that the solution to a problem suddenly appears in your mind although you are not
focused on looking for it at the moment; or that you realize how a problem could be
solved during the process of analyzing it, even before reaching an impasse; or that
you hit upon an idea in a situation that does not involve any definite problem.67
In
65
Ibid.
66
Shettleworth, 2012, pp. 217–218.
67
Cf. Kounios & Beeman, 2014, p. 73.
32 The Legal Mind
fact, such situations are quite frequent, and we would probably have no doubts as to
whether they could be considered insights. Moreover, there are compelling arguments
to assume that such situations activate the same neural structures as other,
more typical instances of insight.68
For methodological reasons, neurobiological research on insight – or any other
mental mechanisms – cannot focus on rare or unique phenomena. Such research
typically involves relatively simple tasks which, however, raise no doubts as to
whether they require an insight. A good example is the remote associates test
(RAT), which consists in showing the participants a list of three words; the participants’
task is to think of a fourth word associated with the other three. When we
consider the series: “cottage – Swiss – cake,” we will reach the conclusion that all
three words are associated with the word “cheese,” while a moment of reflection on
the words “measure – video – worm” will suffice to decide that they evoke the word
“tape.” It is clear, then, that solving a RAT must be based on insight since the
situation involves a cognitive impasse, while the answer appears suddenly and gives
rise to contentment or other positive emotions; at the same time, it can be argued
that this type of problem also involves some cognitive restructuring as the insight
makes us aware of conceptual relations that were not clear at first glance.69
Studies based on brain imaging techniques, especially functional magnetic resonance
imaging (fMRI), have demonstrated that insight is associated with a sudden
increase in neural activity in the right anterior temporal lobe.70
Furthermore, direct
stimulation of the right frontotemporal cortex combined with inhibition of activity
in the left frontotemporal cortex enhances the ability to solve such problems as
RATs. Studies on patients with brain injuries also clearly indicate that insight is
mostly based on the neural structures of the right prefrontal cortex. This is
a particularly interesting set of observations, mainly because the right hemisphere,
as opposed to the left one, plays a minor role in the use of language in the normally
(in the statistical sense) lateralized brain. At the same time, the right hemisphere is
associated with the dominant role in such cognitive domains as creativity, artistic
activity (such as music or visual arts), space perception, and facial mimicry.71
In
other words, despite the fact that it leads to a reconceptualization of the problem,
insight is a mechanism that largely works beyond linguistic categorization of the
world.
Similar remarks can be made with regard to intuition: it has also been shown to
draw mainly on the resources of the right hemisphere of the brain, especially the
neural path that runs from the orbitofrontal to the inferior temporal cortex and uses
the inferior occipitofrontal fasciculus.72
For decades, studies on intuition and insight
68
Cf. Kounios & Beeman, 2014.
69
Cf. Mednick, 1962.
70
Jung-Beeman et al., 2004.
71
Cf. Kounios & Beeman, 2014.
72
Cf. McCrea, 2010; Volz & Cramon, 2006.
Intuition 33
have represented two separate lines of investigation, with their own methodologies
and conceptual frameworks. Recently, however, it has been hypothesized that there
must be structural and functional relations between them. It seems that the interaction
mainly takes place in the caudate nucleus and the occipitofrontal cortex.73
An
insight does not give us a new view of a problem ex nihilo; it uses or alters the
perceptual-motor schemas that intuitive judgments are based on. The so-called
incubation phase, which comes before the conceptual recombination that leads to
an insight, probably involves unconscious “testing” of various solutions to a given
problem on the basis of existing intuition-related schemas. An insight occurs when
any of the schemas, used in an untypical or properly modified way, provides an
answer.74
If these considerations are true, intuition and insight can be regarded as two
fundamental and mutually cooperating unconscious problem-solving mechanisms.
Of the two, intuition is the “laborer,” an extremely efficient and constantly used tool,
providing quick and relatively reliable answers to typical problems. But intuition
does not halt in the face of a nonstandard problem; it is also in such cases that it
provides us with clues; however, those clues may be mutually contradictory or so
weak that there arises a cognitive impasse. Then comes insight, a “special-purpose
mechanism,” something that allows us to break away from the rigid patterns of welltrained
intuitive reactions and to implement a sometimes considerable restructuring
of the existing perceptual-motor schemas. Complex legal problems where “trained”
intuition proves inadequate, such as the Donoghue v. Stevenson and Van Gend en
Loos cases, call for the use of insight.
1.5 the emotional lawyer
Everyone would probably agree that law is one of the spheres of social life that
should be characterized by objectivity and rationality. Philosophers have pointed
out for centuries that we cannot construct a fair social order without breaking away
from our emotions. This “deaffectization” is to be a recipe for rational and balanced
opinions and for right actions. The ability to look at our legal and moral obligations
in an objective and emotionless way has even been proclaimed a virtue by major
philosophical schools, in particular those following the course set by Immanuel
Kant. Of course, there is some simplification here: if we carefully examine the works
of the greatest thinkers, it turns out that they do not ignore or underestimate the role
of affect in human life. However, many of them view rationality as the opposite of
emotionality, even if the opposition is not a strict one. Unfortunately, the more
popular or less nuanced approaches portray this opposition as even more clear and
definite, thereby turning it into a kind of dogma according to which the reason and
73
Cf. Zander et al., 2016.
74
Cf. ibid., 2016.
34 The Legal Mind
emotions are totally incompatible, with rationality being valuable and emotionality
leading us astray in our cognitive efforts.
In the meantime, modern psychological research suggests a totally different
scenario. Underlying the two cognitive mechanisms of intuition and insight are, to
a large extent, the neural structures responsible for emotional reactions. They are not
merely “additions” to the sophisticated ability of abstract thinking based on the rules
of logic. On the contrary, it can be argued that those “higher” cognitive functions not
only developed from the evolutionarily older emotional mechanisms; they quite
literally still serve them.75
In order to be able to look at the architecture of the human mind from this novel
perspective, we must first realize that intuition and insight are not the only manifestations
of the role of emotions in human cognition. Solving problems, whether
theoretical or practical in nature, is connected with considerable effort (in biological
terms, it requires the organism to expend a lot of energy), while the positive effects of
this activity are often uncertain and delayed in time. This is an extremely interesting
issue: how is it possible that we can overcome exhaustion and boredom in order to
renew our efforts to gain cognitive mastery over the world? Evolutionary scientists
claim that this is possible by virtue of epistemic emotions.76
Contradiction or any
other inconsistency that arises in our experience – whether it be the observation that
the actual motion of Mercury is minimally different from that posited by Newton,
the feeling that “it would be wrong” to decide the Van Gend en Loos case in the
standard way, or the inconsistency between what we see (a dog) and what we hear
(miaowing) – tends to arouse our interest or even trigger anxiety and disorientation.
It motivates us to undertake some action and to attempt to explain the cause of the
cognitive dissonance. The feeling that “something is wrong here” and that something
should be done about it is the major driving force in the process that led Albert
Einstein to formulate the theory of general relativity; the same force makes us strive
to find a more satisfying solution to the Van Gend en Loos case or leads us to discover
that the “miaowing dog” is our nephew’s latest toy. If it were not for epistemic
emotions, there would be no – more or less significant – discoveries; getting rid of
anxiety and disorientation or satiating our curiosity, and sometimes even a moment
of amusement or illumination, are the awards that we receive for making our view of
the world more coherent.77
It would be wrong to assume that emotions only have a positive effect on cognitive
processes, motivating us to search for ever-better solutions to the problems that we
encounter. Emotions can also significantly disrupt the process of thinking; and what
I mean here is not extreme situations in which strong affective reactions prevent us
from “clear thinking.” What I am referring to here are the ordinary decision-making
processes that occur under optimal cognitive conditions. For example, it is difficult
75
Cf. Hurley et al., 2011, p. 63ff.
76
Cf. ibid., p. 66ff.
77
Cf. Gopnik, 2000.
Intuition 35
to work with two alternative, mutually contradictory hypotheses for a longer time;
the mind tends to resolve such conflicts rather quickly instead of examining and
systematically comparing the consequences that each hypothesis leads to. This is
connected with the fact that we emotionally strive for certainty and award ourselves
for it. It is hard to admit that our judgments and actions are based on more or less
justified speculations rather than on firm foundations; it is easier to believe that we
have achieved certainty even when, objectively, we are far from it.78
One of the more comprehensive accounts of this phenomenon is the theory of the
need for cognitive closure, first proposed by Arie Kruglanski.79
This theory concerns
our desire to obtain the ultimate answer in a given situation – it could be any answer
as long as it helps us to avoid uncertainty. Kruglanski argues that individuals with
a high need for cognitive closure seek order and structure in their lives, shy away
from chaotic situations, desire knowledge that is reliable regardless of the circumstances,
and experience sudden need for closure, which is manifested in the
categorical nature of their decisions and choices; they experience discomfort
in situations without closure and do not desire to confront their knowledge with
alternative explanations.80
By way of an example, let us suppose a group of subjects who are to decide the
penalty for a person convicted of a petty crime are provided with information on
both the aggravating and the mitigating circumstances. Half of them, however, first
hear about the aggravating factors and then about the mitigating ones, while the
other half receive the information in the opposite order. Those of the participants of
such a study who have a high need for cognitive closure would probably be quick to
form their opinions on the penalty; if they first heard about the aggravating circumstances,
the mitigating factors would not affect their decisions. By contrast, those
with a lower need for closure would be able to evaluate the evidence in a more
balanced manner, taking into consideration all available information.81
It can also
be hypothesized that individuals with a high need for cognitive closure would be
more likely to apply a literal interpretation of legal regulations, without attempting
to adjust their interpretations of the law to the changing social reality.82
In an attempt to provide a theoretical account of such phenomena, Kruglanski
and Webster point to the workings of two mechanisms: seizing and freezing. Seizing
leads to accepting the first unambiguous explanation of a given situation but without
78
Cf. Kossowska, 2005, and the literature referenced therein.
79
Kruglanski, 1989.
80
Webster & Kruglanski, 1994.
81
Unfortunately, Webster and Kruglanski did not conduct this experiment, but they did carry out
a similar one. They presented the participants with recordings of job interviews. The conversations
that the participants heard included information on both positive and negative characteristics of the
candidates, with the recordings having been edited in such a way that one group of subjects first heard
about the negative characteristics and then about the positive ones, while the other group received the
information in the opposite order. Cf. Webster & Kruglanski, 1994, p. 1060.
82
This is partly corroborated by studies demonstrating a link between strongly conservative views and
a high need for cognitive closure. Cf. Kossowska & Hiel, 2003.
36 The Legal Mind
evaluating its quality. Freezing consists in a rapid incorporation of such an explanation
into the existing structure of knowledge, which makes it resistant to change; as
a result, any data obtained at a later stage, which could suggest an alternative
explanation, are simply ignored.83
It should not take long to conclude, therefore,
that a high need for cognitive closure is a trait that makes it more difficult to make
the right decisions; moreover, it can result in making systematic errors and strengthening
one’s belief in the correctness of one’s decisions. As already mentioned,
systematic errors may stem from too great a confidence in heuristic-based judgments.
It must be noted, however, that heuristics lead to errors in non-typical
situations (i.e. ones where heuristics are not the right tool, such as those requiring
statistical analysis or the application of formal logic). A high need for cognitive
closure is conducive to error in a much broader scope: it can also lead to making
incorrect judgments in typical situations, while at the same increasing the likelihood
of reinforcing such errors.
Legal reasoning, just as any other kind of thinking, is deeply rooted in our
emotionality. It is because of our epistemic emotions that we engage in cognitive
effort as they whet our curiosity and award us for successful attempts to solve
problems. Yet, emotions can also disturb our reasoning, especially when our
“need for certitude” makes us accept claims that have not been thoroughly examined.
Emotions also underlie two fundamental cognitive mechanisms that work
beyond our consciousness: intuition and insight. Acquired with experience, intuition
can provide us with quick and usually correct suggestions in typical problems.
By contrast, insight is useful when we face special challenges; it is applied when we
have to deal with a non-typical problem whose solution requires a restructuring of
the existing cognitive-behavioral schemas. We can also speak of legal intuition and
legal insight, but only in the sense that they are contingent upon knowledge,
resulting from experience, on how to address legal problems.
Finally, we should consider one more issue. There is no doubt that emotion-based
mechanisms, especially intuition, have a considerable influence on legal reasoning.
The extent of that influence, however, is open to debate. Some seem to claim that we
are so dependent on emotions that rational thinking is only an ornament that has
little effect on our decisions. This view is endorsed by Jonathan Haidt, with the
caveat that he adopts this approach with regard to moral, rather than legal, decisionmaking.
Given the similarities between moral and legal thinking, it can be argued
that Haidt’s claims are applicable to legal epistemology. In his well-known essay
“The emotional dog and its rational tail,” Haidt argues against the view that “moral
knowledge and moral judgment are reached primarily by a process of reasoning and
reflection.”84
Instead, he claims that a moral judgment arises in one’s consciousness
in an automatic and effortless way, as a product of moral intuition, while moral
83
Webster & Kruglanski, 1994, pp. 1060–1062.
84
Cf. Haidt, 2001, p. 815.
Intuition 37
reasoning processes are associated with effort and usually take place when the
decision has already been made, only to support it ex post. Importantly, the aim of
such reasoning is to try to offer a justification of a previously accepted, intuitive
moral judgment. Of course, Haidt concedes that genuine moral reasoning can lead
to the emergence of a moral judgment. Nevertheless, he contends that this is only
possible in those rare situations where the original intuition is weak and the
circumstances make it possible to engage in long and strenuous deliberations.85
If Haidt were to be right, then all of the weighty tomes on the models and forms
of reasoning and on the structure of legal discourse would not include any
information about the methods of reasoning in law; instead they would only
discuss a set of rhetorical devices that could help lawyers to defend their intuitive
judgments and to influence other lawyers’ – also intuitive – decisions. However,
Haidt seems to go too far. It is often argued that quick and automatic moral
intuitions are often informed by one’s previous reasoning processes, while
in situations of real moral or legal dilemmas people usually engage in deep
reflection.86
It has also been pointed out that the fact that the processes that lead
to the formation of a moral (or legal) judgment are normally arational does not
mean that the moral (or legal) judgment itself ought to be considered arational
because it is open to debate.87
Finally, it is claimed – in contrast to what Haidt
suggests – that people are often capable of correcting their previous intuitive
judgments on the basis of conscious deliberation.88
The following chapters will focus on those means of legal reasoning that allow us
to move beyond the realm of unconscious, intuitive decisions – imagination and
thinking in language.
85
Cf. ibid., p. 816ff.
86
Cf. Pizarro & Bloom, 2003.
87
Cf. Levy, 2006.
88
Cf. Fine, 2006.
38 The Legal Mind