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

Result code in IS VaVaI

<a href="https://www.isvavai.cz/riv?ss=detail&h=RIV%2F00216224%3A14220%2F21%3A00123183" target="_blank" >RIV/00216224:14220/21:00123183 - isvavai.cz</a>

Result on the web

<a href="https://www.law.muni.cz/sborniky/argumentation2021/argumentation2021.pdf" target="_blank" >https://www.law.muni.cz/sborniky/argumentation2021/argumentation2021.pdf</a>

DOI - Digital Object Identifier

<a href="http://dx.doi.org/10.5817/CZ.MUNI.P210-9972-2021" target="_blank" >10.5817/CZ.MUNI.P210-9972-2021</a>

Result language

angličtina

Original language name

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

Original language description

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.

Czech name

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Czech description

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Type

D - Article in proceedings

CEP classification

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OECD FORD branch

50501 - Law

Project

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Continuities

S - Specificky vyzkum na vysokych skolach

Publication year

2021

Confidentiality

S - Úplné a pravdivé údaje o projektu nepodléhají ochraně podle zvláštních právních předpisů

Article name in the collection

Argumentation 2021 : international conference on alternative methods of argumentation in law

ISBN

9788021099722

ISSN

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e-ISSN

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Number of pages

19

Pages from-to

32-50

Publisher name

Masaryk University

Place of publication

Brno

Event location

Brno

Event date

Oct 22, 2021

Type of event by nationality

EUR - Evropská akce

UT code for WoS article

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