Do Not Ignore the Elephant. Exploring the Role of Intuition and
Experience in Judicial Decision-Making

D 2021

Do Not Ignore the Elephant. Exploring the Role of Intuition and Experience in Judicial Decision-Making

TVRDÍKOVÁ, Linda

Basic information

Original name

Do Not Ignore the Elephant. Exploring the Role of Intuition and Experience in Judicial Decision-Making

Authors

TVRDÍKOVÁ, Linda (203 Czech Republic, guarantor, belonging to the institution)

Edition

1. vyd. Brno, Argumentation 2021 : international conference on alternative methods of argumentation in law, p. 32-50, 19 pp. 2021

Publisher

Masaryk University

Other information

Language

English

Type of outcome

Proceedings paper

Field of Study

50501 Law

Country of publisher

Czech Republic

Confidentiality degree

is not subject to a state or trade secret

Publication form

printed version "print"

References:

Open access sborníku

RIV identification code

RIV/00216224:14220/21:00123183

Organization unit

Faculty of Law

ISBN

978-80-210-9972-2

DOI

http://dx.doi.org/10.5817/CZ.MUNI.P210-9972-2021

Keywords in English

Hunch; Intuition; Experience; Cognitive Science

Abstract

In the original language

If we look at the literature about judicial decision-making and interpretation of law, we can find many texts which are dedicated to legal arguments, logic and legal reasoning – in those texts the rationality, analytical and logical thinking is glorified and an interpretation seems ‘just’ as a logical operation where judges subsume certain facts under general legal norm or norms, those norms are formulated linguistically, so it seems that the whole job of judges is to analyze texts. What we can see more rarely are discussions and texts exploring the role of intuitions, feelings and emotions and their role in judicial decision-making – at least in the Czech Republic. Those of our faculties are seen as the source of bias and distortion. Even if we look to the past, those themes are not so common among legal theorists and philosophers – especially in our tradition where we are still influenced by Hans Kelsen and František Weyr and their normative theory – but we can find exceptions and those are the American legal realists. In this paper, we will show that their observations and insights seem to be right. How can we know it? Because in last decades cognitive scientists have made big progress in the area of decision-making and it seems that we are not so rational as we thought us to be. They have explored that our thinking does not take place only through the deliberative system but, surprisingly, there is also another one system which influences our decisions. This system is automatic, fast, and intuitive – some call this system S1, Seymour Epstein an experiential system. This automatic system is more influential than our deliberative system because it is always heard – we can use Jonathan Haidt’s metaphor of an elephant and a rider. S1, the intuitive, experiential system, is an elephant and S2, the deliberative, analytical system is the rider – in legal theory, we have talked about the rider a lot but we do not explore the elephant sufficiently. This paper will try to uncover the nature of the elephant.

Links

MUNI/A/1524/2020, interní kód MU

Name: Role intuice v soudním rozhodování (Acronym: ROOFINT)

Investor: Masaryk University

Cite

TVRDÍKOVÁ, Linda. Do Not Ignore the Elephant. Exploring the Role of Intuition and Experience in Judicial Decision-Making. In Smejkalova, Terezie, Michał Araxzkiewicz, Ondřej Glogar, Linda Tvrdíková, Jana Stehlíková, Markéta Štěpáníková. Argumentation 2021 : international conference on alternative methods of argumentation in law. 1st ed. Brno: Masaryk University, 2021, p. 32-50. ISBN 978-80-210-9972-2. Available from: https://dx.doi.org/10.5817/CZ.MUNI.P210-9972-2021.

@inproceedings{1808377,
   author = {Tvrdíková, Linda},
   address = {Brno},
   booktitle = {Argumentation 2021 : international conference on alternative methods of argumentation in law},
   doi = {http://dx.doi.org/10.5817/CZ.MUNI.P210-9972-2021},
   edition = {1},
   editor = {Smejkalova, Terezie, Michał Araxzkiewicz, Ondřej Glogar, Linda Tvrdíková, Jana Stehlíková, Markéta Štěpáníková},
   keywords = {Hunch; Intuition; Experience; Cognitive Science},
   howpublished = {tištěná verze "print"},
   language = {eng},
   location = {Brno},
   isbn = {978-80-210-9972-2},
   pages = {32-50},
   publisher = {Masaryk University},
   title = {Do Not Ignore the Elephant. Exploring the Role of Intuition and Experience in Judicial Decision-Making},
   url = {https://www.law.muni.cz/sborniky/argumentation2021/argumentation2021.pdf},
   year = {2021}
}

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ID  - 1808377
AU  - Tvrdíková, Linda
PY  - 2021
TI  - Do Not Ignore the Elephant. Exploring the Role of Intuition and Experience in Judicial Decision-Making
PB  - Masaryk University
CY  - Brno
SN  - 9788021099722
KW  - Hunch
KW  - Intuition
KW  - Experience
KW  - Cognitive Science
UR  - https://www.law.muni.cz/sborniky/argumentation2021/argumentation2021.pdf
N2  - If we look at the literature about judicial decision-making and interpretation of law, we can find many texts which are dedicated to legal arguments, logic and legal reasoning – in those texts the rationality, analytical and logical thinking is glorified and an interpretation seems ‘just’ as a logical operation where judges subsume certain facts under general legal norm or norms, those norms are formulated linguistically, so it seems that the whole job of judges is to analyze texts. What we can see more rarely are discussions and texts exploring the role of intuitions, feelings and emotions and their role in judicial decision-making – at least in the Czech Republic. Those of our faculties are seen as the source of bias and distortion. Even if we look to the past, those themes are not so common among legal theorists and philosophers – especially in our tradition where we are still influenced by Hans Kelsen and František Weyr and their normative theory – but we can find exceptions and those are the American legal realists. In this paper, we will show that their observations and insights seem to be right. How can we know it? Because in last decades cognitive scientists have made big progress in the area of decision-making and it seems that we are not so rational as we thought us to be. They have explored that our thinking does not take place only through the deliberative system but, surprisingly, there is also another one system which influences our decisions. This system is automatic, fast, and intuitive – some call this system S1, Seymour Epstein an experiential system. This automatic system is more influential than our deliberative system because it is always heard – we can use Jonathan Haidt’s metaphor of an elephant and a rider. S1, the intuitive, experiential system, is an elephant and S2, the deliberative, analytical system is the rider – in legal theory, we have talked about the rider a lot but we do not explore the elephant sufficiently. This paper will try to uncover the nature of the elephant.
ER  -

TVRDÍKOVÁ, Linda. Do Not Ignore the Elephant. Exploring the Role of Intuition and Experience in Judicial Decision-Making. In Smejkalova, Terezie, Michał Araxzkiewicz, Ondřej Glogar, Linda Tvrdíková, Jana Stehlíková, Markéta Štěpáníková. \textit{Argumentation 2021 : international conference on alternative methods of argumentation in law}. 1st ed. Brno: Masaryk University, 2021, p.~32-50. ISBN~978-80-210-9972-2. Available from: https://dx.doi.org/10.5817/CZ.MUNI.P210-9972-2021.

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