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An intuitive approach to judicial expertise

Tomasz Zygmunt

Abstract

Research shows that expert performance in many fields of activity is embodied in an expert level of intuition. This appears to be true in predictable domains with fixed rules. However, evidence suggests that this type of expertise also exists among representatives of more naturalistic domains, such as firefighters or art specialists. This paper considers whether a kind of expertise embodied in expert intuition can occur in judges. It supports the thesis that it is possible to achieve expert intuition in the scope of some types of court situations consisting of legal problems with an objective legal standard for solving them. However, legal intuition is ineffective in cases involving legal problems with no such standard, and thus it cannot be developed to the expert level in this respect. The paper discusses two model examples of comparable legal problems: those that generate a completely novel normative issue for judges, and those that create a conflict between judicial intuitions, frequently regarding the relation between law and morality. In both of these situations there are no visible environmental regularities (repetitive patterns of legal practice) to adapt, and hence, it is impossible to perform a deliberate practice – a form of training indispensable for developing expert intuition – for legal decision-making. Legal intuitive expertise, therefore, appears to be powerless in determining the holistic answers to some legal court cases, despite the skills and experience of the judge.

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1 Introduction

  • 1 For a general review on the psychology of intuitive decision-making, see Gilovich et al. 2002, and (...)
  • 2 For a general review on intuition as a foundation of expertise, see inter alia Gigerenzer et al. 19 (...)
  • 3 For a general review, see Ericsson et al. 2018: 535-673.
  • 4 Hogarth 2001: 68-99, 214-247, Ross 2006: 68-71, Klein & Kahneman 2009: 524-525 – compare with Erics (...)
  • 5 See e.g., Hutcheson 1929: 276, Richards 2016, Brożek 2019: 23 – compare with Berger 2013, Stelmach (...)

1Psychological research on human intuition has shown that in the majority of everyday choice situations human beings make their decisions using heuristic intuitive thinking rather than by employing fully analytical reasoning.1 One of the most curious examples of the ability to perform an expert performance – an extraordinarily effective process of decision-making, professional activity, or finding a correct answer or solution to a problem – is that of expert intuition.2 Intuitive skills developed to the expert level are observed in domains with fixed rules ensuring high predictability of the outcomes, such as games, sports, or playing musical instruments.3 However, when those conditions are lacking, expert intuition appears to be hard to master. Researchers have pointed out several environmental characteristics, as well as the specific form of training needed, to ensure intuitive expertise. These include, among other things, the regularity and predictability of the decisive domain, the repetition of tasks as a form of training, and the timely reception of adequate feedback.4 Under the perspective of expert intuitive skills, therefore, the decisive domain of court judges remains unique. On one hand, there are no fixed objective legal standards for every court situation allowing for the retrieval of the positive or negative evaluation of the concrete action. On the other hand, judges are somehow trained to conduct a complete trial, which ends with the final decision. Moreover, legal education and the following legal practice is perceived as a source of judicial expert intuition by many researchers.5 The question of whether there are kinds of court cases in which this intuition can be developed to the expert level, therefore arises.

  • 6 The legal domain is considered herein as two inseparably intertwined realms of normativity and prac (...)
  • 7 Detailed information on intuition and expert training are provided in section 2.
  • 8 The term “legal standard” has two basic meanings in this paper. The first meaning pertains to the e (...)

2The main thesis of this article is that judicial expert intuition – although likely to be found – cannot be achieved in every type of legal court case. In particular, intuitive expert performance cannot function as a comprehensive decision-making process for novel legal problems or legal problems that generate conflicting judicial intuitions. The reason for this lies in the environmental features of the decisive domain of court cases, which cannot provide the proper habitat for intuitive expert training in every type of legal problem.6 The proper cultivating of expert intuition requires patterns to be learned through repetitive training with adequate critical evaluation of performances.7 Judges, therefore, can perform intuitive judgments at an expert level in simple cases – those in which the retrieval of the feedback knowledge happens and provides a possibility to learn on its basis– but not in atypical ones, where no objective legal standard sets the framework for ruling.8

3The present analysis attempts to compare the current knowledge on expert intuition with judicial decision-making from the perspective of task-doing or problem-solving activity. To do so, the article juxtaposes the psychological requirements of intuitive expertise with the structural characterization of tasks judges have to solve in courts. In the following section (section 2), the crucial concepts of intuitions, expert performance, and deliberate practice – a form of training indispensable for achieving expert intuition – are introduced and briefly described. In section 3, the models of judicial decision-making processes in simple cases are juxtaposed with models of expert intuitive decision-making. In section 4, judicial expert intuition is evaluated on the basis of the comparison between the structurer of atypical legal problem solving procedures delivered by judicial mind, and the requirements indispensable for achieving intuitive expertise. In particular, two exemplar models of atypical court situations are discussed from the perspective of developing expert intuitive decision-making skills.

  • 9 Judicial intuition is understood herein from the psychological perspective as presented by Brożek ( (...)
  • 10 Legal decision-making revolves not only around courts and court judges, it also pertains to many di (...)
  • 11 Notably, experimental research juxtaposing different legal professional activities have already bee (...)
  • 12 Decision-making does not deplete all of kinds of legal activities. The different types can be legal (...)
  • 13 As from the legal perspective wherein the task-to-solve model of court cases is applied, the differ (...)
  • 14 The legal theoretical background of easy and hard case conceptualization is briefly presented in se (...)
  • 15 They should therefore be perceived by the prism of the scope of the article – as kinds of concrete (...)

4The thesis in question requires certain introductory remarks. First, the article concentrates on the judicial intuition, understood herein as referring to the decision-making process made by court judges during a trial.9 The legal domain consist of many interdependent realms of activity.10 It is thus difficult to describe a strict set of general characteristics of overall legal intuition. The chosen limitation enables a level of coherence and robustness suitable for utilizing concrete psychological concepts, especially deliberate practice.11 Second, the activity of court judges – that is delivering the judgment over a legal case – is considered a decision-making procedure.12 The illustration of judicial work considered herein is viewed from the perspective of psychological models made from experimental research on human beings performing various tasks and solving problems. The conceptualization of key terms and depicting judicial court activity in a form of problem(case)-solution(judgment) structure allows for the comparison of different types of court cases with the chosen psychological structurization of environments in which expert intuition was observed.13 Third, the chosen separation of easy and atypical legal cases differs from the traditional theoretical account in that it focuses on the difference in the structure of real court problems from the psychological perspective.14 Easy and atypical cases are not used here to simply cover the whole area of legal activity, but to expose certain features of judicial decision-making processes.15

  • 16 See Ericsson et al. 1993, Hogarth 2001, Klein & Kahneman 2009, and compare with Hambrick et al. 201 (...)
  • 17 See Ericsson et al. 1993, Hambrick et al. 2014, Macnamara et al. 2016, Ericsson et al. 2016 and Eri (...)
  • 18 See section 3 and 4.
  • 19 Intuitive expertise is, however, scientifically well-based and to some extent has already been intr (...)

5To summarize, for the purpose of this work, legal court cases are perceived from the holistic perspective: as tasks based on initial input of facts and rules driving the legal procedure. Here, the goal of a task-solver – the judge – is to deliver a judgment in accordance with concomitant normative assumptions. Adopting such perspective allows for inputting the intuitive criterion of division, that is, the possibility to perform an expert intuitive training.16 Finally, it must be emphasized, the article attempts to answer the question of whether court judges can develop expert intuitive skills based on deliberate practice.17 The empirical and theoretical background of intuition and intuitively-based expertise, together with the specification of the structure of problems in which expert intuitive skills were observed or denied, is utilized for the comparative analysis concerning judicial court activity.18 However, the article does not try to state that expertise is completely impossible in law. The sole term “expertise” or “expert” is scientifically complicated and includes many different characterization apart from those intuitively-based or rooted in deliberate practice.19 Moreover, the legal realm consists of a vast number of activities and problems not always involving decision-making process. The scope of the thesis presented here should therefore not be freely expanded beyond the goals of the present analysis– that is, beyond answering the question of the kinds of structures of legal court cases wherein a judge can rely on her expert intuition.

2 Expert intuition and deliberate practice

  • 20 The most well-known model of intuitive thinking is found in the description of System 1 and System (...)
  • 21 Kahneman 2012: 19-23, 89-105, 109-128, 269-333. See also: Tversky & Kahneman 1974, Thaler 1980, Jol (...)
  • 22 While the terms “expertise” and “expert intuition” are connected, the entire discussion pertaining (...)
  • 23 Kahneman & Klein 2009: 518-521, Harteis & Billett 2013: 153, Ericsson 2018: 746-747, and Billett et (...)

6The term “intuition” refers to a complex and complicated area of the multitude of mechanisms responsible for non-analytical decision-making processes.20 A considerable number of human activities and decisions are at least partially embodied in intuitive mechanisms.21 In this article, judicial expertise is viewed from the intuitive perspective, with a few exceptions included for a general review and comparison.22 The term “expert” stands for a person who gains a set of special intuitive skills through the long-term, continuous performance of their actions and the testing of their effectiveness.23 A judicial expert in court is, therefore, a judge with expert intuition.

  • 24 For a general characterization of expert performance see e.g., Harteis & Billett 2013: 145-157, and (...)
  • 25 The term “specialist” in this article refers to a person who is educated, trained, and experienced (...)
  • 26 Gobet 1997 and Gobet & Chassy 2009.

7Expert intuition is characterized by the outstanding performance of actions of the best specialists in their respective domains.24 It allows experts to obtain extraordinary results in their respective areas of activity. Experts can not only choose the right option while solving a concrete task, but they also can find an answer to a complicated problem much faster than other specialists in the field.25 This is possible because they recognize the multitude of patterns in the structural connections in their decision-making area, and in the blink of an eye they can adapt those patterns to a concrete situation they currently find themselves in.26

  • 27 Chase &. Simon 1973: 215-281. See also De Groot 1964, Simon & Barenfeld 1969, and Ross 2006.
  • 28 This strategy can be called a “heuristic”. While it can lead to a mistake because of the lack of wh (...)
  • 29 According to the research, chess masters adapt approximately between ten and one hundred thousand s (...)
  • 30 Among other “predictable domains”, expert performance was well-analyzed in areas such as sport or m (...)
  • 31 Klein et al. 1986: 576-580, Klein and his team revealed that experienced firefighters in a dangerou (...)
  • 32 Some researchers suggest that findings on firefighting expert intuition need to be interpreted with (...)
  • 33 Gladwell 2005: 5.
  • 34 Compare with Mosier et al. 2018.

8Research has exposed intuitive mechanisms as a core of expert performance in several domains. For instance, intuitive expertise is widely recognized as an explanation of the superiority of chess masters. Among others, Chase and Simon concluded that not only do expert chess players fail to show superior abilities of “foreseeing” the strategy of their opponents, but they also do not construct a “long forward” strategy formed upon the investigation of potential subsequent moves. Instead, they visually recognize the right setup of pieces on the chessboard.27 Those findings show that chess masters apply non-analytic, memory based decision-making alongside (or in place of) calculation.28 Chess experts, after years of training in conditions that fulfill certain requirements, acquire a tremendous set of patterns they can utilize in a real game – and thanks to that, the probability of making a right move by means of their intuition is very high.29 Expert intuitive skills are not, however, limited to chess-like areas.30Analyses like those of Klein (et al.) have revealed the possibility of expert performance in a so-called “natural environment” – his team characterized the decision-making process of fire station commanders.31 Their expert intuition has, in some areas, been expanded through their experience in the real environment of their work.32 Another example of the intuitive skills of experts is the question that arose around the authenticity of the Getty Kouros statue from the J. Paul Getty Museum in Los Angeles. Several art experts expressed their doubts about its genuineness whilst being unable to precisely describe what it was that caused their concerns – they merely claimed “there is something wrong” with it.33 Those instances do not come from a game-like environment (such as chess) but from a more “natural” domain of human activity – that is with no artificially created, predictable effects of the usage of the realm’s rules.34

  • 35 Intuitive decisions also make up a considerable part of everyday actions, such as understanding sim (...)
  • 36 Hogarth 2001: 208, Guthrie et al. 2007: 31-33, Richards 2016: 258.
  • 37 It is fundamental for this analysis to distinguish between expert intuition as a process of thinkin (...)

9The abovementioned examples show that expert performance in many different instances is derived from exceptional intuitive skills.35 Thus, the question of whether intuition can be developed to the expert level in the judicial domain, arises. The area of solving legal court cases, although covered by normative rules, is more similar to naturalistic environments than to sports, music, or games because law is the derivative of reality. Court situations are potentially limitless, and it is judges’ role to properly adapt them to the proper set of legal regulations. Moreover, the retrieval of the knowledge after delivering the judgment in the legal case is usually slow.36 From the perspective of the process of decision-making, therefore, it appears to be hard to recognize regularities and memorize patterns of action in such an environment. However, to answer directly whether judges can have an expert intuition in particular types of cases is to firstly establish whether an expert intuition can be trained there.37

  • 38 Compare inter alia Hogarth 2001: 100-136, Farrington-Darby & Wilson 2006: 17-32, Ericsson 2014a: R5 (...)
  • 39 This notion does not diminish the importance of various “modal” factors influencing the development (...)
  • 40 Kahneman & Klein 2009: 517.
  • 41 Kahneman & Klein 2009: 519-520.
  • 42 Kahneman 2012: 239, and Shanteau 1992: 258.

10Psychological research on expertise has resulted in a multitude of conceptualizations illustrating various aspects of expert intuition.38 Nevertheless, there are certain vital points they agree on, such as that expert intuition has to be trained.39 However, to gain expert intuition, one not only has to possess certain features and proper training, but primarily the possibility to learn has to arise. The foundation for expertise is always rooted in the environmental conditions of the domain of an activity. Experience can only be accumulated in realms with a certain amount of regularity and predictability. Conversely, there are fields of activities in which there is simply no chance of achieving expert intuitive skills, regardless of the level of personal endeavor because such domains are unpredictable. Klein and Kahneman have analyzed the environmental features of realms wherein expert performance is possible.40 They distinguished two necessary conditions without which there is no possibility to achieve expert intuition in a particular field of knowledge. The first is for the environment to be regular and predictable, at least to some extent. The second condition requires the regularities of the domain to be possible to learn – that is, to be perceptible and memorable.41 To become an expert, therefore, one must master the cues of her or his realm of activity, which is equal not only to being able to recognize them, but also to adapt and use them in various practical tasks. The predictability of the domain is vital in this context because there is only a subsequent possibility to distinguish effective and ineffective solutions if a certain amount of regularity occurs. Conversely, irregular and unpredictable domains cannot serve as a proper field for forming experts.42

  • 43 Ericsson et al. 1993: 364-367, 368.
  • 44 See the literature cited in Ericsson et al. 1993.
  • 45 Ericsson et al. 1993: 363-406. For a general overview on the basic psychological discussion regardi (...)

11The environmental suitability of the domain, as described by Klein and Kahneman, is necessary for the occurrence of expert intuition, but it is not sufficient. To achieve an expert level of performance, a considerable amount of practical training is necessary, not only for recognizing and memorizing the regularities of the area of activity, but also to be able to adapt practical experience to various tasks. Ericsson (et al.) named this kind of training “deliberate practice”.43 Two substantial features of this expert training are: conducting multiple exercises of similar tasks, and adapting their design to the specific needs of the task-doer.44 Deliberate practice also requires supervision and feedback pointed toward concrete areas for improvement.45 To reach the level of an expert – that is to surpass the skill level of a specialist – long-term deliberate practice is essential. Also of crucial importance is that this type of expert training requires a response that describes the effectiveness of the task-doer’s results and provides information on what can be done better. As Ericsson (et al.) writes:

  • 46 Ericsson et al. 1993: 367. Compare with Guthrie et al. 2007: 31-35.

In the absence of adequate feedback, efficient learning is impossible and improvement only minimal even for highly motivated subjects. Hence mere repetition of an activity will not automatically lead to improvement in, especially, accuracy of performance (…).46

  • 47 See Hambrick et al. 2014: 41. Compare with Ericsson’s reply: Ericsson 2014b: 81-103.
  • 48 Ericsson et al. 1993: 365-368. Compare with Kahneman & Klein 2009.

12Deliberate practice is, therefore, only effective if properly adapted to the cues of the concrete domain and constructed around a learning methodology that enables constant improvement of the performance. Even this type of training, however, does not guarantee that one will become an expert. On the other hand, researchers underline the fact that deliberate practice, although not always sufficient, is indispensable for achieving expert intuition.47 Under this assumption, to answer the question of whether judges can have expert intuition in delivering judgments, it first has to be established if deliberate practice is actually possible in the judicial domain of solving court cases. This type of training requires certain conditions to be effective.48 The absence of these conditions prevents the concrete domain of decision-making from being considered a potential environment for intuitive expert performance. The following question arises: which kinds of court situations are suitable as decisive fields in which deliberate practice can occur, and which are not? Put differently, are there any types of legal cases suitable for developing expert intuition?

  • 49 Brożek 2019: 12-16. See also Hage et al. 1993: 113-114, Richards 2016: 257-258, Crowe 2018: 85-86.
  • 50 Shanteau 1992: 252-266, 258. Compare with Guthrie et al. 2007: 31-33.
  • 51 Kahneman & Klein 2009: 523-525, Kahneman 2012: 199-265. Overconfidence bias is not only the preserv (...)
  • 52 By the judicial holistic judgment, I understand intuitive cues a judge receives during the process (...)

13The prevailing opinion among legal scholars who include psychological accounts in their analyses seems to be that there are intuitive legal experts, brilliant and extraordinary minds capable of solving legal cases at a different level than “simple” legal specialists. For instance, Brożek claims that it is true that there are outstanding legal minds, just as there are outstanding mathematicians or detectives.49 Some researchers, however, offer a different view. For instance, Shanteau includes court judges in his lists of poor expert performers.50 Klein and Kahneman, who appear to support Shanteau’s claim, additionally warn that the common acceptance of “experts’ existence” may be an effect of a bias of overconfidence.51 The present analysis takes a different approach – it does not answer the question of whether judges are, or can be, experts. Rather, the two main issues here concern determining when judges solving court cases can deliver an expert intuitive holistic judgment, and when they fail to do so.52

3 Expert intuition in legal practice of court judges

  • 53 It appears to be experimentally proven that intuitive mechanisms are in many cases an inseparable p (...)
  • 54 For instance, criminal court judges may have superior abilities in assessing the credibility of wit (...)

14It is hard to compare different domains and deliberate practices of legal professionals because of the differences in particular roles and purposes that various legal officers fulfill. The present article, therefore, focuses on the role of a court judge, with her purpose of delivering a judgment. However, legal systems differ, not only in their various normative assumptions – as between civil and common law – but also concerning various legal cultures. Those differences likely influence judges’ legal intuitions.53 Finally, the legal specialization can create various intuitive skillsets, as an expert judge in criminal law will probably share a part but not the whole of her expertise of with her colleague from contract law.54

  • 55 The adaptation of this conceptualization enables the comparison of judicial decision-making with th (...)

15This paper takes a different perspective: it perceives the activity of court judges as solving the given legal problem, and the role of the judge as a task-solver. Judicial reasoning is illustrated as the reasoning of a task-doer. This provides an adaptive model of the legal case with the initial factual input, the concrete rules derived from a normative background and the satisfactory final judgment as a requested as answer or solution to a given task. The present approach allows for answering the question: what is required in the legal court case to enable deliberate practice and allow expert intuition to develop?55

  • 56 The criteria of domain predictability and regularity are primarily included, since deliberate pract (...)
  • 57 Crowe 2018: 75-76, Brożek 2019: 29-34.
  • 58 See Hart 1958: 593-629, 607, Hart 2012/1961, Dworkin1978, and Dworkin 1986. Interesting conceptuali (...)

16To answer this question is to create categories of legal court cases distinguished by the criterion of deliberate practice.56 Currently, among analyses made by legal researchers there are examples of utilizing intuition as a distinction criterion for different types of legal cases, such as those provided by Crowe and Brożek.57 Those analyses further distinguish between hard and easy legal cases, driving on the well-known traditional separation from legal theory as found in the discussion between Hart and Dworkin.58 Interestingly, this distinction appears to have an implicit psychological background.

  • 59 Fuller 1958: 662-664.

17Lon Fuller has deliberately criticized Hart’s theory in a manner strongly in tune with current research on human intuition. Fuller states that Hart misses some vital aspects of legal cases, such as the purpose of the applicable rule of law and the contextual background of the considered situation.59 Such factors are crucial for the development of intuitive skills, but Fuller goes even further – he outlines the “wrongness” of Hart’s conceptualization of the mental processes that underpin legal decision-making:

  • 60 Fuller 1958: 663.See also recent experimental research suggesting that the folk understanding gener (...)

If in some cases we seem to be able to apply the rule without asking what its purpose is, this is not because we can treat a directive arrangement as if it had no purpose. It is rather because, for example, whether the rule be intended to preserve quiet in the park, or to save carefree strollers from injury, we know, ‘without thinking’, that a noisy automobile must be excluded.60

  • 61 Richards 2016: 252. Notably, judicial decision-making is also shaped by legal procedural rules enab (...)
  • 62 The reliability of appeal feedback is controversial. Guthrie et al. consider it fallacious, mainly (...)

18According to Fuller, therefore, the “simple” cases are driven by mental mechanisms that are similar to intuitive thinking. Fuller indicates that the solution to such cases is a derivative of a previous belief that a proposed concrete answer is obviously right and will undoubtedly be accepted – for instance by a court judge. This conviction is not based on the literal interpretation of the legal rule, but on a strong belief that a concrete proposition stands for the right solution in the legal case and can be made upon the practical experience of a lawyer. Fuller’s case of a “noisy automobile” not only refers to the simplest logic or tacit justification of legal prescription – it also shows that there are categories of legal problems for which there is a stable and convincing normative standard for their solving. Fuller, therefore, provides a picture of legal cases that fulfill the criteria necessary for expert intuition. The court case, which has an objective legal standard for its solving – i.e., the reference point – can be repetitive.61 Judicial practice with such legal problems involves the exercise of decision-making in similar cases and the supervision and feedback of higher courts, including their previous judgments.62 The similarities between particular cases will eventually develop intuitive patterns of task-solving. Were they formed in a way that fulfilled the requirements of deliberate practice, expert judicial intuition could possibly arise.

  • 63 Brożek 2019: 5, 39-67. Compare with Jakubiec 2021: 1-19.
  • 64 For Brożek, there are better and worse legal experts, but someone educated and specialized in the d (...)
  • 65 Brożek 2019: 53-61. Legal cases are composed of several normative problems, but only some of them a (...)
  • 66 Crowe 2018: 75-86.
  • 67 Crowe 2018: 78. Importantly, legal intuitive judgments are not on the same level as legal analysis. (...)
  • 68 In other words, in atypical cases there is no previous holistic pattern of judicial performance to (...)

19Fuller arguably enriches legal theory with the example of intuitively solved court cases. In this context, the works of Bartosz Brożek and Jonathan Crowe provide a particularly useful conceptualization, as they deliberately introduce intuition into the judicial domain of decision-making. Brożek uses intuition to deliver an epistemological model of the legal mind. In his work, intuitive legal thinking is one of three components of legal reasoning – the others include language and legal imagination, used, inter alia, to verify potential answers to legal cases.63 For Brożek, legal expertise is perceived as a derivative of expert intuition.64 Court judges, therefore, utilize expert intuitive thinking to reach a potential solution to a legal problem, and then they use legal imagination to verify its consequences and accept or reject it – within some cases their intuition can find a legal standard for solving that they have previously adapted.65 Crowe, on the other hand, divides legal cases into easy ones (those fully solved by intuition), not-so-easy ones (partially solved by intuition), and hard ones (impossible to solve by intuition).66 According to Crowe’s theory, judicial reasoning in easy cases is based on so-called “holistic intuitive judgments” – that is, the mechanisms of retrieving a behavioral pattern, stored in the memory of an experienced lawyer, and adapting it to a new case.67 Apparently, this is in accordance with Fuller’s cases where the judge “knows without thinking”. Such mechanisms, however, are futile in hard cases because they cannot deliver a full, final answer to an atypical legal problem.68

  • 69 Whereas, among legal scholars, the issue of judicial intuitive expertise is disputable on many leve (...)
  • 70 Compare with Klein & Kahneman 2009: 524-525.
  • 71 Legal education is considered broadly in the present article as a form of training for legal specia (...)

20Both of the abovementioned authors agree on the fact that there is category of legal problems in which intuitive thinking delivers holistic answers to judicial minds.69 From the perspective of psychological research on expert intuition, their characterization of such legal court cases appears to fulfill the environmental conditions necessary for developing expert intuition.70 Fuller’s, Crowe’s, and Brożek’s categories of “easy” cases do not induce discrepancies in terms of their legal background but instead usually show one robust manner for their solution. This in turn allows for proceeding relatively quickly while ensuring the vital stages leading to the presumptive final judgment are completed. Every positive outcome of those steps – such as the satisfactory decision of a court or an approval of a teacher or supervisor –can arguably provide feedback for the legal intuition of the practitioner. This robust manner for their solution can originate from a university or practical education, where legal apprentices complete various theoretical or practical tasks (examples of cases) and, after finishing them, the outcome is evaluated by the more experienced specialist (or compared with the existing solutions of similar judgments).71

21Within the scope of the presented examples, it seems arguably possible that in certain kinds of legal cases the environmental structure allows for the development of objective legal standards for holistic judgments. Those standards could enable a predictable form of legal education and practice (training), which – if repetitive – can provide a proper habitat for deliberate practice, and thus for expert intuition to arise. Nevertheless, both environmental predictability and deliberate practice are indispensable to, but insufficient conditions for, the development of expert intuition. Therefore, for legal cases to be considered potential ground for developing expert judicial intuition, a set of criteria is needed. The first necessary criterion is a stable, objective, legal standard of solving cases, which allows for the necessary feedback. Second is a high level of the repetitiveness or similarity of the concrete types of cases. Third is the sole number of encountered cases, sufficient for internalizing patterns of judicial decision-making. It seems probable that judges can develop expert intuition in delivering holistic judgments for court situations if these three criteria have been fulfilled.

4 The ineffectiveness of judicial expert intuition

  • 72 As was stated previously, this does not equal the statement that judges cannot become experts, even (...)

22The consequence of lacking one or more of the previously mentioned conditions is most likely a type of legal case upon which there is no possibility of achieving judicial expert intuition. Without a legal standard for solving the case, high repetitiveness, or a sufficient number of encountered cases, the concrete area of court judicial decision-making cannot be considered predictable or regular. Legal cases from an irregular and unpredictable normative area cannot provide an appropriate environment for deliberate practice – hence, there is no possibility to become an intuitive judicial expert on such legal problems in sense of mastering their holistic solving.72 This section depicts the exemplar structures of tasks laying behind such legal cases and the process of reasoning concomitant to judicial decision-making. Such structures can be juxtaposed with the requirements of legal deliberate practice provided above.

  • 73 That also stands for providing models based on psychological research on intuition and possible to (...)
  • 74 Ohlsson 2011: 76, Zander et al. 2016: 8-9.
  • 75 Ohlsson 2011: 73-78, Brożek 2019: 53-61. Parts of such reasoning, regular and already adapted, can (...)
  • 76 To achieve an appropriate deliberate practice the repetition of similar tasks is also indispensable

23The goal of characterizing exemplar models of atypical cases is to ensure an empirically embodied conceptualization.73 To depict the intuitive mechanisms of a judicial mind in such a way, legal reasoning in court cases can be illustrated by the prism of psychological concepts. Taking a task-solving perspective, the judge encounters a factual situation, while simultaneously having a legal background embodied in her experience of legal education and practice. This first step can be called an initial mental image of the problem, created by intuitive mechanisms.74 The next step is deriving a consequence of applying legal rules to the factual situation, creating a new conclusion, and using it as a premise for the next argument in the ladder-like reasoning.75 If such a process can lead to the final solution of the case, provided that it was properly evaluated with fast and reliable feedback given upon the objective standard, a form of deliberate practice is arguably performed.76 However, if neither intuitive nor deliberative reasoning can develop a satisfactory holistic answer – that is, an answer, which is eventually evaluated positively by a task-solver – then the required adequate feedback cannot be followingly delivered.

  • 77 Such cases are traditionally labelled by Crowe as hard cases – see Crowe 2018: 82. For some example (...)
  • 78 As Ohlsson writes: “(…) a failure to solve a problem is no great mystery if the person lacked the k (...)

24The main problem regarding legal cases in which judicial expert intuition cannot provide holistic judgments lies within the differences between their particular structures. Such cases are most likely unique, and their task-structures can therefore also vary.77 This raises the question of in which structures of legal cases judicial expert intuition cannot be formed, in the sense of delivering holistic judgment, despite the accumulation of experience in other, partially similar legal problems. In other words, if a judge is an intuitive expert in solving a specific type of court case, which structures of different legal problems will be similar enough to ensure the effectivity of judicial expert intuition? And conversely, which structural differences make a legal case impossible to solve by an expert judicial mind, despite having an ability to solve other ones?78

  • 79 In such situations it is not only that expert intuition cannot deliver a final answer, but delibera (...)

25The answers to those questions are not easy to find. This is due to the fact that legal problems are complex – even if legal intuition cannot deliver a holistic judgment, it is highly probable that some parts of the judicial decision-making procedure are done intuitively. However, within the case there can be a normative issue that a judge cannot solve using her experience, and where there is no objective legal standard for solving this kind of problem to find.79 Such normative issues can constitute an atypical legal case if a court situation cannot be ended without previously resolving controversial legal problem. Similarities between such cases and typical court situations described in section 3 are not sufficient to ensure the effectiveness of expert legal intuition, for they are not providing a legal standard for solving for all the normative issues that are indispensable for the final judgment.

  • 80 See, e.g., California v. Carney, 471 U.S. No. 83-859, 386 (1985) (compare with Brożek 2018: 29-31), (...)
  • 81 Such experience can arguably be active in every court situation. See Crowe 2018: 82-83.
  • 82 Judicial experience consists of knowledge and skills in utilizing legal sources. Judges can find th (...)

26Many examples of atypical legal cases come with different problems: literal and contextual meanings, advanced technology, or a completely novel situation.80 In this analysis, two model types are put forward as examples. First, there are instances of legal cases that cannot be measured with experience, simply because there has been no such normative problem before. In such situations, the main issue concerns the similarities between the new case and cases that have generated intuitive experience accumulated by the judicial expert.81 The problem occurs when within the case there is a normative issue that cannot be determined considering both judicial experience and available legal sources.82 If solving this issue is indispensable for making the judgment, then there can be neither expert intuition nor deliberate practice before the answer is achieved and solidified. The regularity of performance must be previously established to unlock the domain for future intuitive experts.

  • 83 The case, Wightman and Others.
  • 84 Wightman and Others, para. 2.
  • 85 See article 68 of the Vienna Convention on the Law of Treaties, of 23 May 1969: United Nations Trea (...)
  • 86 Wightman and Others, para. 38-42. The mere system of the Union Law combined with the unique charact (...)
  • 87 Wightman and Others, paras. 39-41.

27An instance of a novel and indeterminate legal problem can be found in the case connected to the United Kingdom leaving the European Union.83 The main issue of the case was the question of whether the United Kingdom could unilaterally revoke their notification of leaving European Union while the formal process of leaving had already been started.84 As European Union law has not provided a regulation on this matter, particular basic analogies from international law were raised by the Court of Justice of the European Union (CJEU).85 However, the similarities were highly disputable.86 On the one hand, legal international experience has provided several opinions that article 68 of the Vienna Convention should apply, and the right for revocation should be granted, as in international law of treaties. On the other hand, however, there were voices pointing out that during the process of leaving, the United Kingdom could not unconditionally revoke their notification because of the new obligations taken on during the negotiations, the lack of the written prescription in the EU Treaties, and for several other reasons.87 The case resulted in a new normative precedent in the case of the United Kingdom – eventually the CJEU ruled that the United Kingdom could unconditionally revoke their notification of leaving the European Union.

28Building on the previous section, legal experts in international treaty law could find in Wightman and Others the objective legal standard for solving the case provided by the Vienna Convention; and this line was chosen by the CJEU. However, there were renowned legal professionals in the EU Council and Commission with their own expert opinions and consistent lines of argumentation, even though their answers differed. Therefore, whereas it is highly possible that intuitive legal judgements were available within the considered case, since legal experts from exiting international agreements or contracts were involved, the normative issue of unilateral revocation could not be considered as having an objective legal standard for solving it within the EU order. This raises the question of whether Wightman and Others was similar enough to utilize the pattern of legal standard from Vienna Convention. Considering the indeterminate argumentation, and the novel normative issue of leaving the unique legal order of European Union, the case in question can be better viewed as creating the fundaments for new deliberate practice, rather than holistically building on an existing one. Expert intuition can arguably provide the way to answers for new, unpredicted cases, but only if there is a consistent area of regularities which per analogiam enables utilizing already existing legal standards. Put differently, novel cases are those within which particular normative issues require establishing new legal standards, since the existing ones does not provide solidified patterns for solving them.

  • 88 That, of course, changes when the objective legal standard is put forward by the highest court, and (...)
  • 89 Such situation varies from deciding whether a legal standard can be utilized in the sense that both (...)

29Despite their embodiment in existing systems of law, novel cases cannot provide an environment for legal expert intuition to act at its finest because there is no existing pattern to utilize in the situation of a new legal problem when existing analogies are insufficient to ensure a solution.88 There are also different types of atypical cases in which legal expert intuition cannot provide holistic judgments. One of them occurs where it is possible to extrapolate more than one pattern of judgment, and those patterns conflict with each other.89 These types of legal problems produce intuitive answers, but those answers are mutually contradictory. The cause of such hard cases appears to be rooted inter alia in the multi-faceted matter of the relation between law and morality.

  • 90 Owens v. Owens, 6 S.E. 794, 100 S.C. N. C. 240 (1888) [hereafter Owens v. Owens].

30To outline the problem, the judgement in Owens v. Owens can be juxtaposed with Riggs v. Palmer. In Owens v. Owens the judges of the Supreme Court of North Carolina had to decide whether the wife of Mr. Owens was legally authorized to receive her dower after her husband was murdered.90 The legal provisions stated that Mrs. Owens was entitled to the assets at issue, but the problem came from the moral realm – Mrs. Owens had participated in the homicide of her husband. The final judgment stated that the dower should be granted to Mrs. Owens because there was no rule provided otherwise, including the fact that she was sentenced in the criminal procedure. As the Justices state:

  • 91 Owens v. Owens, 204.

We are unable to find any sufficient legal ground for denying to the petitioner the relief which she demands, and it belongs to the lawmaking power alone to prescribe additional grounds of forfeiture of the right which the law itself gives to a surviving wife.91

  • 92 Owens v. Owens, 204.
  • 93 Riggs v. Palmer, 514.
  • 94 Compare the legal arguments in Owens v. Owens, 241 with Riggs v. Palmer, 514.

31If the answer in Owens v. Owens was intuitive, it was congruent with the positivist normativity at the time, while simultaneously strongly opposed by the judges.92 Interestingly, a similar normative difficulty appeared in Riggs v. Palmer, where the grandson murdered his grandfather to obtain an inheritance.93 The case was judged in 1889 – only a year after Owens v. Owens – by the Court of Appeals of New York. Arguably, the positivist approach should lead to Elmer Palmer being entitled to the inheritance as well, since there was no legal provision or stated rule of denying it to people who had murdered their devisor. However, in this case the Justices decided otherwise, using the developed moral-based rule, which generally held that “nobody shall gain profits from their own action of malice”.94 Despite the factual and normative similarities, these two cases were judged differently.

  • 95 See on that matter e.g., Austin 1832, Hart 1958.
  • 96 Owens v. Owens, 203-204, Riggs v. Palmer, 515-520.

32This difference can arguably be explained on the intuitive level. The Justices of the Supreme Court of North Carolina and of the Court of Appeals of New York both contained experienced lawyers, educated in the positivist tradition, which predominated in the United States’ legal system at that time.95 It can be supposed that, considering the rules of the US legal system, the Justices had been trained in law in a manner in which particular legal areas would fulfill the requirements of deliberate practice – and hence expert intuition might have been achieved by them, considering, for instance, the practical usage of the general normative background of positivism. However, none of the mentioned cases were solved quickly or effortlessly. The justification of the Owens v. Owens judgment shows the discussion around the different yet possible verdict of depriving Mrs. Owens of her rights because of her wrongdoing; and conversely, there were dissent opinions in Riggs v. Palmer entitling him to the inheritance.96 In both of those cases, therefore, judges had a conflict of two contradictory solutions, which, assuming their experience, might be based on their expert intuitive cues.

  • 97 As research suggests, moral and ethical decisions can also be based on intuitive mechanisms (see Ha (...)
  • 98 Compare with Dworkin 1986: 217-219.
  • 99 The relation between morality and the law remains vital for legal researchers – for a general revie (...)

33The cause of that conflict was arguably rooted in the mental resistance to the answer provided by legal expert intuition. The latter probably suggested a rule-based solution supported by previously internalized legal values, such as “the judge should follow the literal meaning of the rule”, “the court cannot substitute lawmakers”, or “no morality shall influence judicial decisions”. While such answer, within the scope of judicial experience, usually provides ways to the best legally possible judgments, its consequences were evaluated negatively in both of the considered cases. Since “positivistic” intuitive judgment led to rewarding the perpetrator, there was also a place for “moral” intuitions to arise.97 Those intuitions were also legal and probably of expert nature because they were rooted in adjudicative standards judges internalize as axiological foundations of their respective system of law.98 Such intuitions, since they provide the judicial mind with what is “good” and what is “bad”, can be labeled as “moral”, not omitting the fact that they are derived from legal reasoning.99

  • 100 Hence, an important legal issue can concurrently change (or substitute) the outcome of an intuitive (...)

34While legal analyses are usually concentrated around normative or philosophical conceptualizations of morality, from the psychological perspective the mental mechanisms responsible for the decision-making process of lawyers are of prime importance. Applying psychological concepts, during her education and practice a lawyer creates his or her own intuitive model of legal morality – based on the adaptation of patterns of legal decision-making – and follows it in their future performance, while, of course, being constantly supervised by the “rationality” of a legal mind.100 From this perspective, therefore, the collision of two contrary intuitive answers – the “positivist” and “moral” – can constitute the intuitive models of judicial decision-making processes in Owens v. Owens and Riggs v. Palmer.

  • 101 Ohlsson 2011: 73-85, 91-93, Brożek 2019: 12-14, 45-61.
  • 102 Owens v. Owens, 203-204, Riggs v. Palmer, 511-514. It is, therefore, plausible that the legal mind (...)
  • 103 The process of reasoning could involve one expert intuitive path being changed because of the unacc (...)
  • 104 The vital question about intuitively indetermined cases regards what eventually determines a judge’ (...)

35The models in question are based on two legal standards that provide contradictory intuitive holistic judgments. The first requires the judge to act according to the literal meaning of the rules despite the effect being morally repugnant. The second promotes an unwritten general legal standard, embodied in the moral foundations of the legal domain. In both cases it can be assumed that the initial mental representation of the case involved the basis of legal background, such as the separation of legal decision-making and moral judgments, or the claim to not use the law against its own goals. This initial mental representation is the starting point for legal expert intuition. Here, judicial intuition utilizes a multitude of adapted patterns to create a path to the solution of the normative task and to evaluate the visualized consequences of the latter.101 In Owens v. Owens and Riggs v. Palmer, the two provided answers were intertwined with the legal domain, as in both cases judges were considering them in their argumentation.102 Since they also pertain to the basic assumption of the legal system in which the judges were educated and trained practically, it can be arguably assumed that intuitively proposed solutions could be the effect of judicial expert intuition.103 In the first scenario, one of the solutions excludes the other, and there is no objective legal standard for choosing the proper option.104

  • 105 The lack of adaptive pattern touches both the development of and having judicial expert intuition, (...)

36The two presented models of legal cases – but likely not only those – are exemplar illustrations of legal cases in which neither judicial expert intuition can provide holistic intuitive judgments, nor deliberate practice can be produced to ensure future judicial expertise. This is because of the lack of a stable point of reference – an objective legal standard of adjudication, being established by either legal theory or judicial practice. In the first scenario the standard could not be established because of the novelty of the normative task to resolve. If judicial reasoning fails to properly adapt similar standards – for instance because the case in question differs significantly – expert intuition is insufficient for creating a path to the solution. In the second scenario of conflicting legal (or legal and moral) intuitions, it can be the expert intuition itself that causes the solution to the legal case to be indeterminate. The path to an intuitive holistic solution is blocked by a negative mental evaluation provided by another strong intuitive response. And since there is no objective legal standard for solving the conflict, the intuitive judicial answer for this part of the legal case cannot be adapted at hand.105 If a judge encounters legal cases similar to these problematic models, then she can expect that the conditions for deliberate practice are not fulfilled within the considered area of legal decision-making, and that it is therefore probable that current judicial expert intuitions are not fully prepared to provide their best performance.

  • 106 Expert intuition developed through deliberate practice is not a mere accumulation of knowledge and (...)

37Given these remarks, the legal realm appears to be at least partially incapable of developing expert intuition – in the sense of holistic judgments.106 In some types of legal cases, where there is currently no stable and objective legal standard for solving them, judicial deliberate practice cannot be started, and hence expert intuition cannot be created. The reason lies in the lack of regularities and feedback necessary for expert training. The absence of a legal standard for a concrete type of legal case does not mean that there never will be expert intuition in that area of law, nor that experienced judges will be wholly incapable of addressing this type of problem with their legal intuitive expertise. Conversely, by using their intuitive cues, together with the various means of legal analysis, the new objective legal standard can be established for future judicial experts. However, as expert intuition requires time, effort, and prior environmental conditions, judges should be aware of the possibility of overconfidence in their search for complete and satisfactory answers to tasks imposed on them during a court trial.

5 Conclusion

38This analysis has proposed conceptual tools for describing the criteria a category of legal cases must fulfill to enable the development of judicial expert intuition. The first criterion is a stable and objective legal standard for solving concomitant normative problems. The second is a high similarity between the cases in question. The third is a sufficient number of cases to allow for internalizing intuitive patterns. When these criteria are fulfilled, deliberate practice can arguably be performed. However, as mentioned, since the criteria are environmental, the occurrence of legal expert intuition is possible, but not certain.

39Assuming that judicial intuitive experts exist, they can utilize a range of helpful legal skills in every part of the legal domain. That being said, considering the model examples discussed in section 4 – cases with novel normative problems or generating conflicting intuitions – judges in atypical court situations should employ an extra level of care. As research suggests, with a great amount of experience comes the chance of being overconfident.

40Finally, it should be noted that the inability of expert intuitive holistic judgement in a particular type of legal case does not equal the inability of being a legal expert, even in scope of the same case. Expert judges have a variety of tools for legal analysis, making them highly effective in solving all kinds of legal issues. A problem may arise when an expert judge wrongly decides to rely on her intuition instead of those other appropriate tools. The purpose of this paper, therefore, has been to remark that from the psychological point of view, expert intuition is an result of a multitude of features – and if those features are not matched, intuitive holistic judgments can be misleading. Thus, we have a sketch of a conceptual model, challengeable on the theoretical and empirical level. The experimental analysis of judicial expert intuition appears to be highly desirable at this stage.

Acknowledgment.— I would like to thank Bartosz Brożek, Łukasz Kurek and Maciej Próchnicki for their precious insights and Monika Gruszka for her constant support. The article is a part of the project no. 2018/29/N/HS5/01324 funded by the National Science Centre in Poland.

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Notes

1 For a general review on the psychology of intuitive decision-making, see Gilovich et al. 2002, and Kahneman 2012, with the literature cited therein. For the role of affective emotions in human decision-making see also Clore et al. 2014: 323-417, and Loewenstein et al. 2001: 267-286.

2 For a general review on intuition as a foundation of expertise, see inter alia Gigerenzer et al. 1999, Hoghart 2001, Ross 2006, Klein & Kahneman 2009, Harteis & Billett 2013, Horvath & Wiegmann 2016. Notably, expertise can be conceptualized differently than as based on intuitive skills – see Gobet 2017. Compare with Harteis & Billett 2013: 153-154 and the intuitive-skeptical approach of Cappelen: 2012: 17-20.

3 For a general review, see Ericsson et al. 2018: 535-673.

4 Hogarth 2001: 68-99, 214-247, Ross 2006: 68-71, Klein & Kahneman 2009: 524-525 – compare with Ericsson et al. 1993: 367-373 and Guthrie et al. 2007: 29-33.

5 See e.g., Hutcheson 1929: 276, Richards 2016, Brożek 2019: 23 – compare with Berger 2013, Stelmach 2017: 153-159, and Crowe 2018: 82-86.

6 The legal domain is considered herein as two inseparably intertwined realms of normativity and practice. However, the present analysis limits its scope to the borders of the question “how judges actually judge” rather than “how they should judge” or other normatively embodied issues. Therefore, not omitting its uniqueness, the area of legal court situations is perceived as a field of activity of trained legal professionals and potential experts.

7 Detailed information on intuition and expert training are provided in section 2.

8 The term “legal standard” has two basic meanings in this paper. The first meaning pertains to the external, objective pattern of solving legal problems, whereas second refers to internal intuitive pattern judicial minds have produced on the basis of the encountered external standards.

9 Judicial intuition is understood herein from the psychological perspective as presented by Brożek (2019: 5-29).

10 Legal decision-making revolves not only around courts and court judges, it also pertains to many different professions such as lawyers, attorneys, administrative and police officers, and many more. To connect them all through the usage of normative rules they must all employ is likely to result in a fuzzy image.

11 Notably, experimental research juxtaposing different legal professional activities have already been made – for instance Strömwall, and Granhag analyzed the presumed expert skills in detecting deception by police officers, prosecutors, and court judges. The research has revealed that none of these professions have superior abilities in detecting deception over ordinary people, despite the fact that all three groups shared a strong belief that they are specialists or experts on that matter, which may being an example of the overconfidence bias (See Strömwall, & Granhag 2003). For a general overview on detecting deceptions, see also Vrij 2008. On the matter of overconfidence, see section 2 of this analysis.

12 Decision-making does not deplete all of kinds of legal activities. The different types can be legal advising, lawmaking, or choosing the proper wording for argumentation. That being said, legal court cases can be also depicted as a task for a judicial mind. This is the main perspective utilized in presented analysis.

13 As from the legal perspective wherein the task-to-solve model of court cases is applied, the differences between legal systems, legal branches, or legal cultures are implied as an environmental structure of a concrete decision-making domain. This by no means suggests that they have no significance for the presented matter. Rather, the presented analysis focuses on situations where the judicial area of expertise is to some extent specified. The prior concretization, while significantly limiting the scope of alleged judicial legal knowledge and skills, allows for the subsequent classification of judge’s holistic judgments. This issue is discussed further in sections 3 and 4.

14 The legal theoretical background of easy and hard case conceptualization is briefly presented in section 4.

15 They should therefore be perceived by the prism of the scope of the article – as kinds of concrete legal problems solved by judicial minds.

16 See Ericsson et al. 1993, Hogarth 2001, Klein & Kahneman 2009, and compare with Hambrick et al. 2014. More details are provided in section 2.

17 See Ericsson et al. 1993, Hambrick et al. 2014, Macnamara et al. 2016, Ericsson et al. 2016 and Ericsson 2018. More details are provided in section 2.

18 See section 3 and 4.

19 Intuitive expertise is, however, scientifically well-based and to some extent has already been introduced to the domain of law – see Guthrie et al. 2007: 29-33, Richards 2016: 249, 252-253, Crowe 2018: 76, 79-82, 85-86, Brożek 2018: 28-29, 45-46, and Brożek 2019: 12-23.

20 The most well-known model of intuitive thinking is found in the description of System 1 and System 2 thinking – see Stanovich & West 2002: 436, Kahneman & Frederick 2002: 49-81, and Kahneman 2012: 19-49. The pure division between the deliberative and intuitive systems of thinking has been met with a robust critique, especially regarding interdisciplinary research – see inter alia Glöckner & Witteman 2010: 1-25, and Kruglanski & Gigerenzer 2011: 97-109.

21 Kahneman 2012: 19-23, 89-105, 109-128, 269-333. See also: Tversky & Kahneman 1974, Thaler 1980, Jolls et al. 1998, Kahneman 2003, Gigerenzer 2006, Hodgkinson et al. 2008, Glöckner & Witteman 2010, and the literature provided in these works. Notably, intuition does not exclude analytical thinking from action, as in the majority of intuitive decisions the analytical processes play a supervisory role to ensure the maximum accuracy of the preferred choice – see Kahneman 2012: 39. Intuitive decision-making processes have been also confirmed in legal practice – see inter alia Pogarsky & Babcock 2001, Gigerenzer & Engel 2006, Englich et al.2006, Guthrie et al. 2007, and Danziger et al. 2011.

22 While the terms “expertise” and “expert intuition” are connected, the entire discussion pertaining the former covers many different perspectives. This article, however, aims to address the issue of judicial expert intuition by the prism of empirically well-founded analyses of environmental conditions of the decision-making realm. See the literature reviewed in Kahneman & Klein 2009 and, Ericsson et al. 2018; see also Klein et al. 2019. Compare the aforementioned literature with the legal perspectives on judicial non-analytical expertise – see e.g. Brennan 1988, Modak-Truran 2001, and Richards 2016.

23 Kahneman & Klein 2009: 518-521, Harteis & Billett 2013: 153, Ericsson 2018: 746-747, and Billett et al. (2018): 112.

24 For a general characterization of expert performance see e.g., Harteis & Billett 2013: 145-157, and Ericsson et al. 2018: 151-253, 331-673, with the literature cited therein.

25 The term “specialist” in this article refers to a person who is educated, trained, and experienced in their field of activity, but who has not achieved an expert level. The specialist can perform the actions in her or his domain as a professional or, to put it differently, much better than the ordinary person. However, their performance is not extraordinary within the domain and among their similarly educated and trained colleagues. Only a small number of specialists will eventually gain an expert level. What firmly argues for the separation of an ‘expert’ and a ‘specialist’ is the fact that to actually define an expert, some researchers use so-called ‘peer judgment’ – that is the consensus of the specialists on the field that the certain person is above their own professional skills, alongside objective (e.g., statistical) measure factors. In other words, all experts are specialists but not all specialists are experts. Compare with Cole 1989: 163-170, 164, English et al. 2006: 190, and Brożek 2019: 13-16. For more about peer judgment, see Kahneman & Klein 2009: 519 and compare with Shanteau 1992: 255.

26 Gobet 1997 and Gobet & Chassy 2009.

27 Chase &. Simon 1973: 215-281. See also De Groot 1964, Simon & Barenfeld 1969, and Ross 2006.

28 This strategy can be called a “heuristic”. While it can lead to a mistake because of the lack of wholly analytical reasoning of every possible choice, it is simultaneously very effective within the scope of “ecological rationality”, which regards the time and effort necessary to perform an action. Ecological effectiveness (or rationality) prefers an adequately high probability of a success over certainty. Thanks to that, the ecologically rational process of decision-making can save an immense number of resources – such as time, effort, brain activity etc. – indispensable for the satisfactory outcome. For a more diligent explanation of ecological rationality, see Todd & Gigerenzer 2007: 167-171. Notably, the ecological rationality of intuitive decision-making is sometimes juxtaposed with the more subjective-pointed perspective of Herbert Simon’s bounded rationality. On this matter, see Simon 1955: 99–118, Simon 1986: S209-S224, and Simon 1990: 15-18. Various findings have shown the importance of an ecological rationality – for instance, Lee Green and David Mehr have found that in coronary care units (CCU) in Michigan, the qualification of patients by means of a system called ‘Heart Disease Predictive Instrument’, although based on the scrupulous investigation of the patient’s condition, works significantly less effectively than the simple ‘yes or no’ formula of a patient examination. See Gigerenzer 2006: 24-28, and Green &. Mehr 1997: 219-226. See also Meehl 1954, Breiman et al. 1984, and Kahneman 2012: 222-233.

29 According to the research, chess masters adapt approximately between ten and one hundred thousand set patterns that they can immediately recognize on a chessboard – see Simon & Barenfeld 1969: 473-483, 481-482. Compare with Hambrick et al. 2014: 43.

30 Among other “predictable domains”, expert performance was well-analyzed in areas such as sport or music – see Lehmann et al. 2018 and Williams 2018 with the literature cited therein.

31 Klein et al. 1986: 576-580, Klein and his team revealed that experienced firefighters in a dangerous decision-making situation only analyze and modify one option, instead of comparing two or more actions. As a result, they were able to rapidly adjust their plans and perform the appropriate actions in the blink of an eye. The initial hypothesis, on the other hand, had assumed that fire commanders compare two options of action and choose the better one – see Klein 1993: 139. See also the recent research on the decision-making of experienced firefighters: Okoli et al. 2016: 89-103.

32 Some researchers suggest that findings on firefighting expert intuition need to be interpreted with caution. First, they should not suggest that firefighters’ expertise refer to an entire field of activity but rather to its specific areas – and that is similar to the situation in the legal domain presented here. Second, the bias of overconfidence can arise in areas where “partial” expertise is possible. Compare with Minei & Bisel 2013: 7-32. More details on overconfidence are provided further in the article.

33 Gladwell 2005: 5.

34 Compare with Mosier et al. 2018.

35 Intuitive decisions also make up a considerable part of everyday actions, such as understanding simple sentences, basic area orientation, or typical car driving – see Kahneman 2012: 19-23; compare with Billet et al. 2018, and Mosier et al. 2018: 454 - 456.

36 Hogarth 2001: 208, Guthrie et al. 2007: 31-33, Richards 2016: 258.

37 It is fundamental for this analysis to distinguish between expert intuition as a process of thinking and as an effect or outcome of deliberate practice. In this context, Richards defines a judicial “hunch” as “the conscious result of an unconscious process” of a System 1 type of thinking and recalls Sinclair’s distinction between “intuition” (outcome) and “intuiting” process – see Richards 2016: 250-251, Sinclair 2010: 379. Expert intuition can therefore be illustrated as the outcome of deliberate practice, as it is in most of the examples within this work (more details on the distinction between the process and the outcome are provided in section 4). Additionally, Sinclair provides interesting arguments supporting the occurrence of “rational” legal analysis even considering holistic intuitive judgments – see Sinclair 2010: 382.

38 Compare inter alia Hogarth 2001: 100-136, Farrington-Darby & Wilson 2006: 17-32, Ericsson 2014a: R508-R510, and Feltovich et al. 2018: 59-83.

39 This notion does not diminish the importance of various “modal” factors influencing the development of an expert intuition – such as talent or physical abilities. However, even the most talented person cannot be born an expert in a concrete field. See on that matter Hambrick et al. 2014: 43.

40 Kahneman & Klein 2009: 517.

41 Kahneman & Klein 2009: 519-520.

42 Kahneman 2012: 239, and Shanteau 1992: 258.

43 Ericsson et al. 1993: 364-367, 368.

44 See the literature cited in Ericsson et al. 1993.

45 Ericsson et al. 1993: 363-406. For a general overview on the basic psychological discussion regarding the features and the usefulness of the concept of the deliberate practice see also: Macnamara et al. 2014: 1608-1618, Hambrick et al. 2014: 34-45, Macnamara et al. 2016: 355-358, and Ericsson 2016: 351-354.

46 Ericsson et al. 1993: 367. Compare with Guthrie et al. 2007: 31-35.

47 See Hambrick et al. 2014: 41. Compare with Ericsson’s reply: Ericsson 2014b: 81-103.

48 Ericsson et al. 1993: 365-368. Compare with Kahneman & Klein 2009.

49 Brożek 2019: 12-16. See also Hage et al. 1993: 113-114, Richards 2016: 257-258, Crowe 2018: 85-86.

50 Shanteau 1992: 252-266, 258. Compare with Guthrie et al. 2007: 31-33.

51 Kahneman & Klein 2009: 523-525, Kahneman 2012: 199-265. Overconfidence bias is not only the preserve of legal specialists. There are many instances from inter alia clinical care, the stock markets, or sports, which not only show the fallacy of presumably expert performance but also the powerful tendency to defend “the honor of the domain” even when presented with empirical findings. See as an exemplar: Meehl 1954, Gilovich et al. 1985: 295-314, Shanteau 1992: 256-259, Kahneman & Klein 2009: 521-523, and Kahneman 2012: 199-265, with the literature cited therein. See also Moore & Healy 2008: 502-517, with the literature cited therein.

52 By the judicial holistic judgment, I understand intuitive cues a judge receives during the process of her reasoning, in a way similar to Crowe – see Crowe 2018 with the literature cited therein. More details on holistic judgments are provided in the following section.

53 It appears to be experimentally proven that intuitive mechanisms are in many cases an inseparable part of judicial decision-making processes – see e.g., Pogarsky & Babcock 2001, Guthrie et al. 2007, Englich et al. 2006, Danziger et al. 2011, and Bystranowski et al. 2021.

54 For instance, criminal court judges may have superior abilities in assessing the credibility of witnesses with strong emotional expression than judges specialized in economic law – see Wessel et al. 2006 and compare with Strömwall, & Granhag 2003.

55 The adaptation of this conceptualization enables the comparison of judicial decision-making with the psychological findings on expert problem solving, including empirical research.

56 The criteria of domain predictability and regularity are primarily included, since deliberate practice requires receiving feedback based on preexisting knowledge – see Ericsson et al. 1993: 367-369.

57 Crowe 2018: 75-76, Brożek 2019: 29-34.

58 See Hart 1958: 593-629, 607, Hart 2012/1961, Dworkin1978, and Dworkin 1986. Interesting conceptualizations of hard cases in legal theory are given by, inter alia: Gardner 1984: 38-66, Susskind 1993: 196, and Hage et al. 1993: 120, 148-150.

59 Fuller 1958: 662-664.

60 Fuller 1958: 663.See also recent experimental research suggesting that the folk understanding generally prefers the literal over the context-embodied meaning of the rule – but these two approaches are much more interlaced than is reflected in legal theory: Struchiner et al. 2020: 312–329.

61 Richards 2016: 252. Notably, judicial decision-making is also shaped by legal procedural rules enabling additional levels of regularity and predictability.

62 The reliability of appeal feedback is controversial. Guthrie et al. consider it fallacious, mainly because the appeal judgments usually take over a dozen of months to arrive. On the one hand, this argument can be countered within the categories of cases where there is a stable objective legal standard for solving the case, usually in the form of a coherent line of previous judgments. Also, an objective legal standard of solving cases can be developed by legal theory and adapted in the process of legal education. On the other hand, the unreliability of appeal feedback can be additionally supported by the results of Guthrie et al.’s “Cognitive Reflection Test”, where they found negligible differences between judges with different experience levels. See on that matter Guthrie et al. 2007: 31-32. The reliable feedback, although in a very narrow spectrum of cases is accepted by Richards – see Richards 2016: 252.

63 Brożek 2019: 5, 39-67. Compare with Jakubiec 2021: 1-19.

64 For Brożek, there are better and worse legal experts, but someone educated and specialized in the domain can count as one – Brożek 2019: 16.

65 Brożek 2019: 53-61. Legal cases are composed of several normative problems, but only some of them are challenging for the legal mind, in the sense that they require judges to personally decide upon an indeterminate issue. When facing such problems in a case where judicial intuition provides answers, a holistic solution can be found, and the additional work necessary to ensure the production of a judgment (e.g., adjusting concrete legal provisions) can additionally enrich the judge’s intuitive experience. Conversely, if the partial normative problem included in the case cannot be solved by judicial intuition, nor deliberatively, then holistic judgment is also impossible to achieve. This is not to say that such cases cannot be solved at all, or with the help of quasi-intuitive mechanisms – see e.g., the remarks on legal insight provided in section 4.

66 Crowe 2018: 75-86.

67 Crowe 2018: 78. Importantly, legal intuitive judgments are not on the same level as legal analysis. In other words, intuitive expertise does not substitute for legal analysis, even in easy cases – just like the intuitive System 1 does not negate the need for the deliberative System 2 (Kahneman 2012: 19-49). Rather, legal intuitive expertise and holistic judgments should be perceived in a way such that they provide strong and reliable support for making effective and accurate judicial decisions.

68 In other words, in atypical cases there is no previous holistic pattern of judicial performance to adapt – Crowe: 82-84.

69 Whereas, among legal scholars, the issue of judicial intuitive expertise is disputable on many levels, the sole occurrence of judicial intuition appears to be widely accepted – see e.g., Gigerenzer & Engel 2006, Guthrie et al. 2007, Pietrzykowski 2012, Richards 2016, Stelmach 2017, Crowe 2018, and Brożek 2018 and 2019.

70 Compare with Klein & Kahneman 2009: 524-525.

71 Legal education is considered broadly in the present article as a form of training for legal specialists. The characterization of legal practice education differs in kinds and levels of specific branches of law. Another difference lies in the diversity of various legal systems, and it is the main concern considering general legal education. The differences between various systems of legal education should eventually be juxtaposed not with each other but with deliberate practice as a final reference. A very different problem concerns the role of universities in legal education – for instance whether the education they provide should be as practical as possible, or conversely, if the emphasis should be on what is frequently called an “academic education” (see on this matter Zoll 2004).

72 As was stated previously, this does not equal the statement that judges cannot become experts, even considering atypical cases, since there are perspectives on legal expertise other than intuitive. On the other hand, Klein and Kahneman strongly underline the problem of overconfidence in their work, which they characterize as the issue of “false experts” – persons believing in their own judgments, despite scientific evidence which shows that their domain is unpredictable and impossible to master. This statement can arguably refer to parts of the legal domain, although it should be viewed as giving a notion rather than objective and universal judgment. See Kahneman & Klein 2009: 521-523, Kahneman 2012: 116-117, 212-221, 261-265. Compare with Shanteau 1992: 258, English et al. 2006: 191, 193-194, 197.

73 That also stands for providing models based on psychological research on intuition and possible to be empirically challenged.

74 Ohlsson 2011: 76, Zander et al. 2016: 8-9.

75 Ohlsson 2011: 73-78, Brożek 2019: 53-61. Parts of such reasoning, regular and already adapted, can be intuitive, while the rest can be resolved by analytical or deliberative thinking – see section 2 and 3.

76 To achieve an appropriate deliberate practice the repetition of similar tasks is also indispensable.

77 Such cases are traditionally labelled by Crowe as hard cases – see Crowe 2018: 82. For some examples considered hard cases by legal theorists, see inter alia: Riggs v. Palmer case (Riggs v. Palmer, 115 N.Y. C. App. 506 (1889) [hereinafter Riggs v. Palmer]; Hart 1961: 79-99, 107, Dworkin1978: 19-31, 81, 280, and Dworkin 1986: 15-20), Henningsen v. Bloomfield Motors, Inc., 32 N.J. Sup. C. 358, 161 A.2d 69 (N. J. 1960), Donoghue v. Stevenson, UKHL 3 (1931), SC (HL) 31 (1932), UKHL 100 (1932), AC 562 (1932), Re Wünsche Handelsgesellschaft/Solange II, BVerfGE 73, 339 (1986). Compare with the discussion on Gustav Radbruch’s formula: Bix 2011: 45-57.

78 As Ohlsson writes: “(…) a failure to solve a problem is no great mystery if the person lacked the knowledge or competence necessary for solving it” (Ohlsson 2011: 91). Judges, however, are trained specialists, and hence they should have the necessary abilities to solve most legal cases. Those in which they cannot utilize their knowledge in a typical manner are most likely impossible to master on an expert intuitive level.

79 In such situations it is not only that expert intuition cannot deliver a final answer, but deliberate practice also cannot be performed. If the legal standard for solving the case is created in the future and embodied by legal education, while the proper number of similar cases are simultaneously solved in such a way, judicial expert intuition will arguably be achievable in the that type of case. However, every requirement indispensable for achieving legal expert intuition must be fulfilled – see section 2.

80 See, e.g., California v. Carney, 471 U.S. No. 83-859, 386 (1985) (compare with Brożek 2018: 29-31), United States of America v. Microsoft Corp., 253 F.3d 34, (D.C. Cir. 2001), Miller & Anor, R (on the application of) v. Secretary of State for Exiting the European Union, UKSC 5 (2017), and C-621/18 Wightman and Others, Court of Justice of the European Union, ECLI:EU:C: 999 (2018) [hereafter Wightman and Others].

81 Such experience can arguably be active in every court situation. See Crowe 2018: 82-83.

82 Judicial experience consists of knowledge and skills in utilizing legal sources. Judges can find the answer to legal cases in memory or in external references. Both methods can provide the pattern of intuitive performance; however, if the case is undetermined in both mentioned examples, the stable pattern must first be created to ensure deliberate practice in the future. On legal indeterminacy, see Berman & Hafner 1987: 1-35, and Leiter 1995: 481-492.

83 The case, Wightman and Others.

84 Wightman and Others, para. 2.

85 See article 68 of the Vienna Convention on the Law of Treaties, of 23 May 1969: United Nations Treaty Series, Vol. 1155, p. 331.

86 Wightman and Others, para. 38-42. The mere system of the Union Law combined with the unique characteristic of the European Union and the multilateral obligations of member states was claimed unique and providing a new legal order by many judgments of the CJEU – see e.g., Wightman and Others, para. 44, Les Verts v Parliament, 294/83, EU:C:1986:166, para. 23, van Gend & Loos, 26/62, EU:C:1963:1, para. 12, and Costa, 6/64, EU:C:1964:66, para. 593. The uniqueness of EU law is, hence, normative, and deriving analogies from international law before the CJEU must proceed with respect to that fact.

87 Wightman and Others, paras. 39-41.

88 That, of course, changes when the objective legal standard is put forward by the highest court, and the deliberate practice can begin. See Wightman and Others, para. 75.

89 Such situation varies from deciding whether a legal standard can be utilized in the sense that both intuitive answers are considered legally valid, but their consequences are visualized and valued differently. However, the line of separation between the mentioned types of cases can be opaque in many concrete instances.

90 Owens v. Owens, 6 S.E. 794, 100 S.C. N. C. 240 (1888) [hereafter Owens v. Owens].

91 Owens v. Owens, 204.

92 Owens v. Owens, 204.

93 Riggs v. Palmer, 514.

94 Compare the legal arguments in Owens v. Owens, 241 with Riggs v. Palmer, 514.

95 See on that matter e.g., Austin 1832, Hart 1958.

96 Owens v. Owens, 203-204, Riggs v. Palmer, 515-520.

97 As research suggests, moral and ethical decisions can also be based on intuitive mechanisms (see Haidt 2001: 814-834, and Haidt 2007: 998-1002). Apparently, presumable moral experts – philosophers with a specialization in ethics – have also been prone to cognitive biases and overconfidence. On that matter, see Tobia et al. 2013: 629-638, and Schwitzgebel & Cushman 2015: 127-137.

98 Compare with Dworkin 1986: 217-219.

99 The relation between morality and the law remains vital for legal researchers – for a general review see inter alia Bentham 1781, Finnis 2011, Raz 1985: 295-324, and Dickson 2001, with the literature cited therein. The practical sphere of law also provides vital examples of the importance of the impact of morality and values expressed in judgments (compare Plessy v. Ferguson, 163 U.S. 537 (1896), and Brown v. Board of Education of Topeka, 347 U.S. 483; 1954). As research suggests, moral racial biases can occur in courts – see inter alia Levinson et al. 2017, and Armour 2018.

100 Hence, an important legal issue can concurrently change (or substitute) the outcome of an intuitive judgment – see inter alia: Kahneman 2012: 39-49, Kruglanski & Gigerenzer 2011: 97-109, and Zander et al. 2016: 2-3. Therefore, the proper perspective for intuitive cues, including expert ones, should be to perceive them as tools of judicial decision-making, not as its material end results. Simultaneously, as the present analysis suggests, the intuitive influence on judicial decision-making should not be underestimated – see experimental research mentioned in section 3 and 4.

101 Ohlsson 2011: 73-85, 91-93, Brożek 2019: 12-14, 45-61.

102 Owens v. Owens, 203-204, Riggs v. Palmer, 511-514. It is, therefore, plausible that the legal mind can simultaneously hold two or more deliberate practices connected to legal decision-making – assuming the sufficient number of necessary resources (see section 2). Furthermore, as some skills can arise concomitantly to the “main” activity (for instance, an increased sensitivity of listening as a side effect of training on a musical instrumental – see Lehmann et al. 2018: 543), the same can arguably be said about moral intuition being constantly trained by both legal education and everyday social challenges. However, as was mentioned, some research about morality appears to suggest otherwise (Tobia et al. 2013, Schwitzgebel & Cushman 2015).

103 The process of reasoning could involve one expert intuitive path being changed because of the unacceptability of its effects – compare with Ohlsson 2011: 92, 113-116.

104 The vital question about intuitively indetermined cases regards what eventually determines a judge’s final decision. To answer that question is equal to resolving the problem of different judgments in similar cases – such as in the comparison of Owens v. Owens and Riggs v. Palmer, where despite core resemblances, the final decisions were significantly different. While intriguing, this question remains outside the scope of this analysis, the main goal of which is to propose a set of criteria for legal cases to separate those with possible legal expert intuition and those where such a phenomenon cannot occur.

105 The lack of adaptive pattern touches both the development of and having judicial expert intuition, but it does not stop judicial intuitive mechanisms. For instance, Crowe states that in hard cases (where judicial intuition is not fully effective) the judge has to use the her deliberative legal reasoning (Crowe 2018:83-86). Apparently, Crowe omits one of quasi-intuitive mechanisms that can arguably explain judicial reasoning solving hard cases on an intuitive level. This mechanism is called insight and it involves receiving a sudden flash of understanding after a mental impasse. In the case of two conflicting expert intuitive alternatives, the occurrence of legal insight might be probable – see on this matter Ohlsson 2011: 87–93, Zander et al. 2016, Brożek 2019: 29-34, and Zygmunt 2020.

106 Expert intuition developed through deliberate practice is not a mere accumulation of knowledge and experience; it is the peak of an adaptive toolbox, capable of effectively adjusting to different types of tasks (compare with Gigerenzer & Todd 1999b: 3-34). Not being able to deliver holistic judgments in certain types of cases does not exclude legal intuition or legal expert intuition from action. Conversely, it is highly probable that intuitive legal specialists and experts can find a multitude of helpful intuitive cues for solving even atypical, e.g., novel or contradictory, cases. On the other hand, not knowing the limits of their own expertise can lead judicial intuitive experts to the bias of overconfidence – see on that matter Liu & Li 2019.

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References

Electronic reference

Tomasz Zygmunt, “An intuitive approach to judicial expertise”Revus [Online], 48 | 2022, Online since 19 July 2022, connection on 17 August 2022. URL: http://journals.openedition.org/revus/8532; DOI: https://doi.org/10.4000/revus.8532

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About the author

Tomasz Zygmunt

PhD student of the Department of Legal Philosophy and Legal Ethics in the Faculty of Law and Administration of Jagiellonian University in Kraków (Poland).

Address: Faculty of Law and Administration – Jagiellonian University - Bracka Str. 12, room 303 – 31-005 Krakow – Poland

E-mail: tomasz.zygmunt(at)uj.edu.pl

 

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