Abstract

Appeals to judicial intuition have increased as a result of open norms, a high workload and a greater variety of values. This calls for a critical theory of judicial intuition. Not much has happened in this field of research in the Netherlands since the paradigmatic work of professor Paul Scholten . Scholten decisively overcame the notion of subsumption, emphasizing the individual responsibility of judges in adjudication. Judicial activity is not only a matter of subsuming cases under statutes, but also of carefully qualifying the case and the selecting the appropriate statute. This hermeneutical activity is externally bound by law, statute, tradition, constitutionality et cetera, and internally by the judge’s conscience, or the judge’s ‘intuition’. The final decision should integrate all these aspects. His notion of intuition, albeit praiseworthy, is unclear in some respects: Why is it irrational in nature? Can it be verified? May it lead to arbitrariness towards the parties involved? Does it allow for a quasi-religious derivation for judicial activity? An apposite complement to Scholten can be found in Aristotle’s Nicomachean Ethics. According to Aristotle, the rational process of decision-making is imbedded in intuition, which is both the ‘first term’ and the ‘last term’ of phronetical activity. Intuition is the ‘first term’in the sense that the judge has received moral formation through knowledge of laws, education in the family and by teachers, experience and habituation. As a result of this formation, the judge is spontaneously disposed to envisage specific cases. There is thus a spontaneous and hermeneutical relation between the judge’s general knowledge and the legal qualification of the case at hand. The ‘rational’ process of judging then aims to find the ‘middle,’ the decision that optimally meets the requirements of the concrete situation, the happiness of the polis, and the judge’s knowledge of law and ethics. To this effect, the judge will deploy some elements of his intuition and reject others. The hermeneutical relation between general knowledge and the specific case is thus repeated time and time again in order to reach an optimum. The final judgment of the judge is an act that also rests on intuition. An intuitive moment lies between the decision and the act. The decision functions as intuitive foreknowledge by means of which the judge views the situation anew. If the decision optimally meets the requirements of the situation, the judge will move to act, write and deliver his judgment. As such, intuition is also the ‘last term’ of the judge’s phronetical activity