Abstract

Under the pressure of rapidly increasing case-loads, organisational solutions are sought to make the work of judges more efficient and cost-effective. This article discusses the implications this might have for the nature of judicial judgement. The authors argue that contemporary Dutch theories on judicial judgement have a decidedly instrumental and formal-logical bias, and are therefore of limited value for understanding judicial judgement in the everyday environment of the court room. Taking the work of one of the most influential Dutch legal scholars, Paul Scholten, as their point of departure, the authors argue that judicial judgement must be seen as a form of everyday practice. Despite the somewhat archaic language, the seventy-year-old theory of Paul Scholten, can be used as a basis for a practical reorientation of the judicial judgement theory. The authors focus on three key insights of Scholten the decision informs the selection of relevant rules in a case; judicial judgement is an act not a form of syllogistic reasoning; and judicial judgement is both moral and rational) and juxtapose these with insights from contemporary practice theory as developed in Public Administration and policy science. The authors conclude that Scholten’s pragmatist, realist approach is still highly relevant as a guide for continuing research on judicial judgement in everyday organisational settings.