Perspectives in legal theory have shifted in recent years as a result of the impact of scientific findings regarding human intuition.1 This tremendous amount of research provides a fresh angle to consider the process of reasoning in legal cases.2 The overarching goal of this paper is to indicate how scientific evidence on intuitive mechanisms can be useful for the legal-theoretical assessment of the so-called ‘hard cases’. The article argues that, at the present moment the dominant legal-theoretic models of reasoning in hard cases provide a very narrow role for intuition. Simultaneously, from a scientific standpoint, intuitive processes are indispensable parts of human decision making – hence the models in question cannot deliver a satisfactory explanation of how hard cases are solved by lawyers. This neglect of intuition can arguably be the derivative of legal theorists’ attempt to construct an account of reasoning in legal cases which, in essence, matches their assumptions regarding law rather than reveals the operation of the relevant mental mechanisms. As tensions between these models and their scientifically informed counterparts mount, the robustness of the former appears to be gradually weakened.
The article sketches a proposal for an intuition-based model of legal reasoning in hard cases focusing on the phenomenon of insight. The latter is deliberately detached – but not separated – from the more general phenomenon of intuition. The proposed argumentation draws on two psychological conceptions on the considered subject: the discontinuity model of insight and the Redistribution Theory. Additionally, both of these conceptualizations share the general premises of the psychological Theory of Representational Change which the main goal is to illustrate how the human mind generates solutions to atypical problems – and the answer it brings lies in the occurrence of insight. The presented paper attempts to adapt this solution to legal hard cases.
The individualization of the psychological phenomenon of insight from the more general concept of intuition goes under the postulate of the main researchers concerned with human thought processes: interdisciplinary investigations of decision making should look beyond the folk psychological separation of intuitive and analytical processes of reasoning. Simultaneously, within the scope of the proposed psychological approach to legal reasoning intuition is recognized as significant, or even crucial, for it works as an informative database allowing the construction of legally relevant arguments. The presented perspective of extrapolating insight should not, therefore, be perceived as diminishing the role of classical intuitive judgments in legal reasoning. Rather, insight should be considered as a specific conceptual tool, being separated in the pursuit of elucidating concrete mechanisms of the legal mind. The proposed approach can support the explanation of different court decisions in similar cases, to which the sole general concept of intuition appears to be ineffective.
The article is divided into five sections. Introductory section one presents the scope of the article and its main issues. Section two outlines the advantages of defining and describing legal reasoning from the psychological perspective, for the theory of law. Section three follows this deliberation and formulates a definition of hard cases based on the notion of legal indeterminacy. Section four covers the intuitive approach and proposes the Representation Change Theory of Insight as the foundation of the intuitive model of reasoning in hard cases. Section five defends the thesis that hard cases are primarily a matter of human intuition and that legal theory should construct its analysis concerning this fact.
2. Legal reasoning: Theoretical and empirical perspectives
Legal reasoning is one of the pivotal issues considered by legal theorists.3 It appears that is the latter particularly interested in two aspects of the firstly mentioned issue: namely how lawyers reason and how they should reason when they solve legal problems. In the case of the former, that is the descriptive approach to legal reasoning, scholars occasionally refer to various psychological phenomena underlying legal mental processes such as emotions or intuition.45 Concerning sole intuition, mentioned references may be described as folk-psychological in nature, for the evidence used by legal theorists to explain the role of intuitive mechanisms in legal reasoning is mainly introspective.6 Not underestimating the importance of these theoretical considerations, during the last decades, the legal mind is under robust empirical investigation which aims to reveal psychological background underpinning its core.7
From the psychological perspective, the reasoning is understood as the process of deriving a conclusion from previously acquired knowledge.8 In other words, reasoning involves formulating inferences based on delivered premises. This definition does not require either those premises or conclusions to be ‘right’ or ‘accurate’, and the same goes for the mental process which links premises with the conclusion, meaning that they do not have to be formally valid in any manner.9 Reasoning can also be unconscious in the sense that the person who has reached a particular conclusion may be fully or partially unaware of how this has been achieved or on what premises the conclusion is based.10
The above-presented sketchy characterization can be described as a type of empirical perspective. Such an approach might engender some criticism, but simultaneously be useful for the legal theorist because of its potential application to the descriptive considerations of legal reasoning.11 As the empirical view goes beyond folk-psychological accounts of the latter, the evidence it provides may enrich purely theoretical perspectives of a prevailing number of conceptualizations in the legal domain. In the attempt to make use of psychological evidence in legal theory, nevertheless, a complete separation of descriptive and normative stances towards legal reasoning is not feasible, as these two stances are intertwined.12 The legal domain consists of its normative image which drives the legal practice – however, according to contemporary research, a practical sphere of law may not always follow its normativity. On the one hand, hence, lawyers try to reason following the rules they find appropriate, while on the other hand, how they actually reason is sometimes at odds with what those appropriate rules suggest. Therefore, whereas scientific investigations of legal reasoning can be useful to indicate how it may stray from normative standards, it appears to be of limited importance in the discussion regarding how lawyers should reason. Its eventual significance in the latter context can pertain to, for instance, showing the limitations of lawyers’ cognitive capacities, which the normative theories should take into consideration if they are to be used in real-world situations.13 However, as it has already been stated, even the empirical approach to legal reasoning has a normative dimension. Researchers, therefore, if they claim that there are circumstances when lawyers make mistakes in their reasoning, have to assume a normative standard of the latter. Hence, for this article, legal reasoning is defined as the process of formulating a conclusion by legal professionals in the legal domain according to the normative standard put forward by legal theorists. There are three important components of this definition that require further clarification.14 Firstly, a legal professional is understood as a person with specialist legal knowledge and considerable practical experience in conducting and solving legal cases.15 Secondly, the legal domain consists of legally relevant information. Thirdly, normative standards put forward by legal theorists are standards generally regarded by the latter as correct methods of reasoning involving legal matters. To exemplify this further, two instances are provided.
The first example refers to the process of solving divorce cases in the Federal Republic of Germany. According to German law, ‘a marriage may be dissolved by divorce if it has broken down’, which takes place if ‘the conjugal community of the spouses no longer exists and it cannot be expected that the spouses restore it’.16 Importantly, as the relevant provisions state,17 ‘it is irrebuttably presumed that the marriage has broken down’ if:
- the spouses have lived apart for three years
- the spouses have lived apart for a year and both spouses petition for divorce or the respondent consents to divorce.
The ‘irrebuttability’ of those presumptions is illusive, as almost all presumptions in the legal domain are contestable.18 This indication, however, does not change the fact, that in the majority of the cases either three years of separation or one year of living apart and a consensual divorce petition stand for the proper – that is normatively valid – conviction that the marriage cannot be restored. From the perspective of the theory of decision making, therefore, the process of solving the divorce case in Germany can be perceived as heuristic-like, as it provides a reasoning rule which most often allows reaching the correct conclusion, but in a minority of cases, it may lead to a mistake – for instance, when the ‘conjugal community of the spouses’ can exist or the spouses can restore it, even if e.g. there was a period of three years of separation.19 The visualization of the considered legal reasoning is proposed by Wagner in the form of a fast and frugal decision-making tree.20 Wagner builds up the judicial decision-making process in the described cases by indicating which general questions the judge must answer. The first one is ‘do the parties consent to a divorce?’. If the answer is ‘yes’, the second question considered to be is: ‘have the parties been living apart for one year?’. If the answer is also ‘yes’, no other questions are asked, and the judge passes the divorce decision. If the answer to the first question is ‘no’, the judge checks if there has been a period of three years of separation, and additional general questions of possible hardship on the part of the spouse or children are investigated, according to Section 1565 (2) and 1567 (1) BGB, but no additional information is required for the judge to formulate their decision. The judgment is, therefore, built upon an imperfect heuristic procedure, in the sense that the validity of the rule from the second sentence of Section 1565 (2) BGB may be wrongly evaluated. To exemplify, if the parties consent to a divorce and have been living apart for one year, the judge can immediately assume that the marriage has broken down – even if that may not be true in the scope of the actual case. Despite the last-mentioned fact, the presented reasoning is fully accepted by the theory of law – understood as the sum of legal knowledge, including skills of legal practitioners – since neither the German judiciary nor the German doctrine conflicts with rulings made with the justification based on Wagner’s model. Put differently, since there is no judicial or doctrinal undermining of the legal foundation of the illustrated way of concluding, the model of Wagner is legally (or normatively) valid.
The second example consists of two experimental analyses of judicial decisions. The first one was conducted by Danzinger, Levav, and Avnaim-Pesso who investigated over a thousand judicial decisions on parole requests in Israel.21 The results showed the increase in the tendency to rule ‘in favor of status quo’ (that is, to reject the parole request) with each subsequent decision. This tendency, however, ended suddenly after the meal breaks in court sessions.22 The research supported the thesis that legally irrelevant factors, such as resting and eating a meal, can influence the ruling of the judge decisively. The second investigation was conducted by Englich, Mussweiler, and Strack and focused on the phenomenon called anchoring.2324 The participants in their experiment, who were all experienced German judges, were asked, inter alia, to make a sentencing decision in a presented artificial criminal case. However, before delivering their verdict, they had to throw a pair of dice constructed in such a way that they always showed the same digits. The judges were not aware of the fact that the dice were loaded, believing that the numbers would be determined at random. However, the results demonstrated that their rulings were influenced by the numbers they had seen, even though they were convinced that throwing the dice had not had any impact on their decisions. Importantly, the authors of both these experiments shared the common opinion that factors, such as the mental condition which favors a certain tendency in terms of the ruling, or the influence of the psychological bias of anchoring, should not affect legal decisions.25
From the psychological perspective, all the above-mentioned cases refer to lawyers inferring conclusions from the premises in the legal domain. From the normative perspective, however, only Wagner’s model can be called ‘legally valid’. This is due to the fact, that only Wagner’s conception includes legal normative assumption – the ‘irrebuttability’ of marriage being broken down, being directly derived from the relevant legal provisions. The latter experimental examples do not include any such legal standard. Wagner’s model, therefore, not only describes the heuristic-like procedure of legal decision making, but additionally ‘matches’ the process of judicial decision making with the normative presuppositions of German civil law. Although the second-mentioned experimental examples do not provide any considerations regarding legal standards, it is beyond doubt that a legal decision influenced by random numbers or the judges’ ‘mood’ cannot be regarded as correct. Conversely, such a bias could and should be considered as a circumstance justifying overruling such a judgment by a higher court. However, despite the aforementioned differences, all of the presented cases share significant similarities. Firstly, in all of them, the deliberation on the problem of reasoning is presented from the perspective of psychological findings on human non-analytical processes of decision making. In other terms, all mentioned examples are based on psychological concepts bound up with intuition – such as heuristics or cognitive biases.26 Secondly, the actual justification provided by the legal professionals in all of the cases was constructed in a legally appropriate manner, without any notion of the legally irrelevant factors being considered. That is to say that the justification of the judgments was made upon legal normative standards of reasoning, while the actual decision making process was influenced by intuitive biases. It is also possible, therefore, that German judges make divorce decisions based on the premises which are different from those demonstrated in their justifications – although such a thesis requires an experimental investigation. However, despite this notion, Wagner’s model not only uses the psychological explanation for judicial reasoning but also matches the normative assumptions derived from German legal prescriptions. The two other examples reveal mental mechanisms of judicial decision making which cannot stand for the basis of the sentence, for they are in opposition to the law. Obviously, the period of imprisonment should not be determined by rolling pair of dices and the parole granted or denied depending on the judge’s mood. The accordance with the normative standards from the previous definition of legal reasoning, therefore, should be understood in such a manner that it excludes processes which cannot generate legally valid decisions.27
The characterization of legal reasoning introduced above permits to include it’s both normative and descriptive – psychological – aspects in investigations regarding this phenomenon. Legal reasoning is hence presented as the perception of legal doctrine on the issue ‘how lawyers think and conclude’.28 As a consequence, factors that influence the course of legal problem solving are excluded from the definition, without considering their scientific value in this regard. This, in turn, authorizes the juxtaposition of the traditional approaches of legal scholars to the matter of legal inferring processes and conceptualizations rooted in scientific findings.29 A model of legal reasoning based on psychological concepts should, therefore, be profitable for legal theory in two respects. First, it should allow for the problem of the accuracy of normative models to be addressed.30 Second, it can enlarge the field of legal theory as it tries to reconcile the law with the revelations of the contemporary psychology of the human mind.31
The above-presented experimental analysis of judicial decision making reveals several biases which were so far omitted in, or marginalized by legal theory. This state of the matter mostly results from the lack of an accurate methodological background for the domain of law – involving, among others, the conceptual grid of psychological tools potentially useful in analyzing legal reasoning. Nowadays, however, the intuitive mechanisms are becoming illustrated in a way that allows for performing interdisciplinary analysis for various domains. The proposition for such a descriptive approach in the legal realm should not stand contrary to the traditional conceptions of legal reasoning, but rather alongside them, mutually revising their advantages and flaws. The intuitive approach to hard cases proposed in this paper is consistent with the presented perspective, serving as an informative background for the comparison of the normative and descriptive theories regarding the issue of legal decision making in atypical situations.
For the rest of this work, therefore, legal reasoning is understood in the same manner as it was presented in this section.32
3. Hard cases
The term ‘hard case’ is used by lawyers in two main senses. The first one can be described as a common understanding of the considered phenomenon, according to which hard cases generate trouble for legal practitioners due to e.g. complexity or wide scope of their matter.33 By the second understanding of the discussed notion, hard cases are those court situations that are famous in legal theory for being atypical in the context of their respective legal systems.34 Those cases were usually solved by supreme courts and their judgments have abounded in resolutions which were subsequently subjected to theoretical disputes.35 This second understanding of deliberated occurrence has also been investigated by legal scholars and with many approaches presented as a result.
To exemplify, the topic of hard cases constituted, inter alia, the core of the famous legal debate between Herbert Hart and Ronald Dworkin. Hart discusses hard cases from a linguistic perspective. He identifies vagueness and ‘open texture’ as linguistic phenomena which are, to a large extent, responsible for the occurrence of hard cases.36 In this regard, he separated the so-called ‘core’ and ‘penumbra’ types of legal cases. The former takes place when there is no doubt concerning the meaning of the terms appearing in the legal rule as well as to its (the rule) practical application.37 The latter – ‘penumbra cases’ – are the hard cases in Hart’s reasoning. Conversely to the ‘core case’, a hard case occurs when there are questions regarding the application of the legal rule in a particular situation because of the vagueness of its terms.38 Additionally, Hart distinguishes two types of ‘hard cases’. The first type involves those about which legal practitioners differ in their opinions on the solution. The second type of hard cases, on the other hand, covers those which are practically ‘impossible to solve’ since there is no legal rule to direct the course of the court action.39 The answer Hart provides to the question ‘what should a judge do in cases where there are not enough rules to follow?’,40 focuses on judgmental ‘discretion’ – the role of the judge in such situations is, hence, to make ‘the best moral judgment he can on any moral issues he may have to decide’.41 A different explanation was presented by Ronald Dworkin – in his scenario a hard case occurs when ‘no settled rule dictates a decision either way’. The judge, therefore, has to construct his or her judgment on the basis of either ‘principles’ or ‘policies’.42 By incorporating those two as integral parts of the legal domain Dworkin argued that the legal system is indeed complete in the sense that it provides the solution in any situation and the judge’s discretion in ‘hard cases’ does not go beyond the law. From this perspective, judges’ discretional power can be described as limited by the normative standards put forward by Dworkin’s conception.
To give a direct example of hard case under presented views, according to Hart’s conception, in Riggs vs Palmer the rules of law arguably state that no one should change the will of the testator and that criminal punishment should satisfy the legal domain unless the statutory passage provides otherwise, or the judge found the case disputable and used his discretional power to ‘freely’ establish the verdict. This perspective was proposed by Judge Gray, who indicated in his dissenting opinion that he ‘cannot find any support for the argument that the respondent’s succession to the property should be avoided because of his criminal act when the laws are silent’ and that the public policy ‘does not demand it, for the demands of public policy are satisfied by the proper execution of the laws and the punishment of the crime’.43 The presented opinion supports the positivistic solution to the case, namely to act according to the strict interpretation while remaining as close to the literal meaning of the statutory passage as possible. The view of Dworkin, on the other hand, implies the diversification of legal rules and legal principles and states the hierarchy of those two in favor (in the case of conflict) of the latter. This method prevailed in the presented case, as the majority of judges agreed on the notion that the literal meaning of the statutory passages should be abandoned under the principles of the law, since ‘it never could have been their [legislators] intention that a donee who murdered the testator to make the will operative should have any benefit under it’ and providing otherwise ‘would be a reproach to the jurisprudence of our [New York] state and an offense against public policy’.44 These two approaches, although fundamentally different, present two legal perspectives of reasoning which premises are accepted by a legal system, in the sense that they matched normative standards of legal theory. They both also focus on adjusting the justification of the judicial decision to the normative needs of the legal domain, and because of that notion the possibility of certain legal bias – that is to illustrate the process of legal reasoning in conformity with the premises of the legal system, but without the consideration of the coherence with the reality – appears to be at least plausible in presented conceptions.45
Apparently, the whole discussion between Hart and Dworkin, although it mainly addressed the issue of the nature of law, was primarily constructed around the phenomenon of hard cases itself.46 Legal scholars composed numerous approaches on their basis to define the latter. For instance, Gardner’s conception provides a heuristic-based, ‘fast and frugal tree’ – a kind of Wagner’s-like procedure permitting the nature of the legal case to be specified.47 Susskind, on the other hand, it focuses mainly on the definition of a clear legal case, as opposed to hard cases.48 For Susskind, there are two types of clear cases. First, a case can be considered a clear one if, beyond any doubt, it can be decided by the judge, and the chosen option can undoubtedly be accepted by reasonable parties (a potentially clear case). Second, the case is also a clear one if it has been already solved by the court and the decision was unchallenged by parties and any other person in any way (a retrospectively clear case). Both of those propositions (and a few more) are interestingly criticized by Hage who provides a procedural approach to define a hard case.49 In this work, the legal case is hard if it has more than one possible outcome, and during the procedure at least one of the parties concerned was forced to take an a-rational decision-making process.50 In Hage’s conception, the source of hard cases lies in the dialogical nature of court disputes.
The aforesaid variety of conceptualizations calls for a terminological clarification. For this article, therefore, ‘hard cases’ are understood as those which are indeterminate by legal reasoning in the sense that neither the judicature nor legal theory can determine their outcomes. This definition is undoubtedly a broad one and may also be considered ambiguous; on the other hand, however, it provides conceptual apparatus required to assess hard cases from the psychological perspective. Specifically, the proposed conceptualization authorizes the introduction of an intuitive approach to the phenomenon of hard cases – and this is since it permits the analysis of mental processes responsible for legal reasoning in such situations. Importantly, it also remains open to the possibility that non-legal factors are determining the lawyers’ decision, while simultaneously being assessed in the scope of respective normative standards of legal theorists.
The issue of decision indeterminacy is crucial in the context of the Theory of Representational Change, being the core fundament for the construction of the insight-based model of legal reasoning in hard cases proposed herein. The mentioned conception is used by psychologists to assess issues of decision indeterminacy in various non-legal settings concerning different types of human problem solving.51 The term ‘indeterminacy’, however, covers various understandings within the legal domain. To give an example, according to Berman and Hafner,52 a legal case is ‘indeterminate’ when it is possible to justify two different and inconsistent solutions under the same rules and facts of the case. This definition can be considered roughly plain, as it appears to omit the complexity of the legal normative realm. A more refined attempt to assess indeterminacy in law was introduced by Brian Leiter – as he states: ‘to say that the law is indeterminate, then, is equivalent to saying that the legitimate sources of law together with the legitimate, interpretive and rational operations are indeterminate’.53 These four factors – sources, and legitimate, interpretive and rational operations – are described by Leiter as ‘the class of legal reasons’, or in brief ‘the Class’. The Class has also been used to differentiate between legal ‘indeterminacy’ and legal ‘underdeterminacy’ – according to Leiter, the latter occurs when, in the context of the class of legal reasons, more than one (but not any) outcome of a legal case can be justified. Conversely, the first one takes place if any such outcomes can be justified on the basis of the Class.54 The psychological and legal notions indeterminacy, therefore, share a common premise, crucial for the following deliberation – the indeterminate decision consists of at least two different solutions, or no direct solution being recognized. The role of the presented intuitive approach is to reveal the cause of such a stand using the conceptual tool of insight.
Summarizing the argumentation so far, for this analysis hard cases are understood as legal problems the solution of which is indeterminate. This perspective arguably allows for scrutinizing the lawyers solving processes in such situations with the use of psychological tools provided by the behavioral theories on human decision making. Following aforesaid, the Theory of Representational Change is introduced later herein to not only outline a conceptual illustration of lawyers’ decision making in hard cases but also to possibly deliver an explanation of the divergencies in lawyers’ verdicts in hard cases.
4. The intuitive approach
The intuitive approach to hard cases hypothesizes that lawyers’ reasoning, while referring to the latter, relies heavily on their intuition. It utilizes the empirical evidence on how intuitive mechanisms operate and specifies the feasible implications of those for the domain of law. It has to be indicated, however, that the psychological phenomenon of intuition is an extremely complex matter regarding numerous studies pertaining to different mental processes correlated with intuitive thinking.55 Presented considerations, therefore, following the prior investigation on the issue of hard cases, deliberately limit the scope of implemented psychological deliberations to the phenomenon of ‘insight’.56 Such reduction does not exclude the non-insight notions pertaining to the general basis of intuitive mechanisms – rather it creates a certain type of clarification for legal domain, using the very concrete psychological concept, while simultaneously preserving the fundaments of psychology of intuition. Additionally, proposed curtailment can overpass the folk-psychological understanding of mental mechanisms underlying intuition, particularly embodied in the ordinary separation of intuitive and analytical thinking.57
The sole existence of legal intuition is not unfamiliar to the theory of law and attempts to introduce particular concepts from psychological findings to the legal domain – including insight – have also been already performed.5859 An example of how psychological perspective may recompose and arguably enrich legal-theoretical investigations on the role of intuition in legal reasoning is Brożek’s analysis of Joseph Hutcheson’s theory of judicial hunch.60 Hutcheson in his deliberations introspectively describes the manner he – as a professional and experienced judge – proceeds while solving hard cases:
‘While when the case is difficult [hard in presented terminology] (…) I, after canvassing all the available material at my command, and duly cogitating upon it, give my imagination play, and brooding over the cause, wait for the feeling, the hunch – that intuitive flash of understanding which makes the jump-spark connection between question and decision, and at the point where the path is darkest for the judicial feet, sheds its light along the way.’61
Hutcheson addresses the aforementioned characterization of judicial reasoning as being driven by a general mental mechanism of legal intuition (hunch). This illustration, however, is rightly considered by Brożek to be an unintentional pre-description of legal insight – the psychological phenomenon of atypical problem solving investigated experimentally for more than three decades, notwithstanding the earlier work of the Gestalt psychologists.62 The most prominent examples of research on insight are Metcalfe and Wiebe,63 Bowers,64 Ohlsson,65 and Siegler.66 Importantly, nowadays insight is again being exposed and analyzed, mainly in connection to neuroimaging studies on problem solving, as it arguably can propose a novel perspective for the analysis of human creativity and decision-making.67 In the scope of presented argumentation the phenomenon of insight is selected for exemplifying the concretized effect of utilizing the intuitive approach to reconceptualize legal reasoning in hard cases.68 To elucidate the details of the aforesaid proposition, insight’s most important psychological features are shortly illustrated below.
The comparison of several definitions of insight from the most relevant psychological literature about the latter,69 reveals its crucial features:
‘(…) insight is the capacity to gain accurate and a deep understanding of a problem and it is often associated with movement beyond existing paradigms.’70
‘Insight occurs when a person suddenly reinterprets a stimulus, situation, or event to produce a nonobvious, nondominant interpretation.’71
‘(…) the term insight has been used to refer to the sudden and unexpected understanding of a previously incomprehensible problem or concept.’72
In the scope of the above, insight can be understood as the process of a mental creation of a novel solution to an atypical problem.73 Some of its main characteristics are: an impasse (a deadlock in problem solving), an ‘Eureka’ or ‘Aha!’ moment (an abrupt receiving of the solution), and positive emotional response (feeling of excitement) after reaching the answer.74
From the perspective of the intuitive approach, the correlation between insight and intuition is especially intriguing. Specifically, according to the contemporary research, it is not clearly evident if intuition can actually generate the impasse– which insight subsequently overcomes – or whether intuition simply encompasses insight, with the latter being one of the stages of intuitive problem solving. Facing this dilemma, two models of the intuition-insight relationship were presented by Zander et al.75 The first one is the continuity model of intuition based upon the analysis of Bowers et al.,76 where insight emerges from intuitive thinking and the sole occurrence of a spontaneous realization is not perceived as a separate mental mechanism, but rather as a concomitant feeling of reaching the possibility of the conscious verbalization of the answer.77 In the continuity model, therefore, experience based tacit knowledge firstly triggers the intuitive feeling of coherence towards the solution, but that perception cannot be consciously expressed. Afterwards, the second stage of intuition (the insight stage) occurs, and the solution becomes possible to express verbally. The role of insight in this conceptualization is not independent. Instead, insight serves as a conceptualization of the final part of intuitive problem solving, which main characteristics are: an impasse (the answer cannot be consciously expressed) and ‘aha’ moment (the answer becomes consciously available). Intuition, on the other hand, is perceived in the continuity model as a collective set of particular occurrences: memory (or experience), tacit knowledge, and insight itself. The crucial assumption of the continuity model, therefore, is that insight emerges directly from intuitive knowledge and processes.78
Notwithstanding the variety of usefulness of presented conceptualization, the continuity model provokes criticism. One of its main counterarguments claims that the continuity model does not provide a satisfactory explanation why insight (or insight stage) actually occurs. Two proposed answers – the sole ‘arrival’ of the solution to the consciousness, or a substantial change in problem understanding – are not furtherly investigated within the scope of considered conceptualization. Crucially, none of the explanations mentioned in the previous sentence is also preferred by the continuity model. For legal domain, therefore, the lastly mentioned appears to be of limited utility. The actual problems in legal practice – taking the possibilities of time for deliberation, consulting the issue with other legal specialists, or exploring the various sources of legal ‘written’ knowledge – in the scope of insight problem solving arguably refer more to the reorganization of the understanding of legal standard behind the case. In legal-theoretical context, therefore, the explanation of processes underpinning the creation of the solution of the legal case is vital, and this undermines the serviceableness of continuity model of insight for the presented analysis.
The second model of insight – the discontinuity model – may be described as standing in ‘opposition’ to the former. The discontinuity model was based on the research of Ohlsson,79 in which he focuses on the mental reinterpretation or reconstruction of a problem.80 Ohlsson puts the sum of his conception under the name of the Theory of Representational Change, crucial part of which is the Redistribution Theory of Insight.81 According to the latter, an impasse in the process of problem solving is created by the wrong mental representation of the task. To break this deadlock and reach the solution, therefore, a person needs to recompose his or her initial view on the question. This account of insight is particularly interesting from the legal-theoretical perspective. For instance, considering the previously discussed phenomenon of hunch, Hutcheson’s conceptualization of the latter matches the features of insight (impasse as ‘brooding over the case’, ‘Aha’ moment as intuitive flash of understanding), which was already noticed by Brożek.82 The sole introducing of a concrete psychological concept to the legal conceptualization is a step in the right direction considering utilizing psychological evidence in legal domain – however, it leaves unexplained what mechanisms are actually responsible for the insight itself.83 Importantly, only after reaching this latter stage of investigation it is possible to actually re-asses the argumentative of legal theory, for previously ended conceptualizations – although of unquestionable great usage – cannot match the normative legal standards, as they remain principally descriptive.84 The Redistribution Theory of Insight, on the other hand, delivers detailed analysis of processes underpinning the insight problem solving, and because of that fact it is chosen – alongside the discontinuity model – to exemplify the intuitive approach. To ensure the latter, the vital aspects of the Redistribution Theory are provided below.
The Redistribution Theory partitions ‘insight sequence’ into four stages: search, impasse, insight, and aftermath.85 Search occurs when the person who attempts to solve the problem investigates its fact, and gradually gains an understanding of the inferences present within the task. Importantly, according to Ohlsson, the problem solver generates and values the different options available to obtain a solution. The stage of an impasse is caused by the cessation of the generation of those options.86 If an impasse occurs, the further processing of the task depends on its cause. Ohlsson distinguished between warranted and unwarranted types of impasse. In the case of a warranted impasse, the problem solver ‘lacks the competence, capacity or knowledge that is necessary for the solution’.87 Because of that fact, the generation of the solution is impossible without expanding the knowledge of the person working on the task.88 The third stage – insight – can only happen if the impasse is unwarranted, which for Ohlsson means that the problem solver has the knowledge and skills indispensable for achieving an answer prior to the task. If this condition is fulfilled, insight can occur in its wake.
For the Redistribution Theory, insight is a mental event. The person who encounters an unfamiliar problem generates its initial representation.89 This representation subsequently creates the next ‘layers’ of understanding, based on subjective rules of inference. Importantly, those rules additionally prevent retrieval from the person’s knowledge store, something which is inconsistent with considering options.90 The layers (inferences based on initial representation) are subsequently valued in comparison to their simulated effects and subjective feeling of satisfaction. This fact causes the impasse – if the initial representation of the problem leads to the parts of personal knowledge store which are misleading or not useful for solving the problem, the solver experiences the feeling of ‘deadlock’. The initial representation constrains mental capacity and does not allow elements of knowledge indispensable for solving the task to be employed. The impasse stage, however, can force the solver to reevaluate the option he or she has chosen and to create alternatives. This process can be described as being the inverse of generating conclusions on the basis of initial representation of the problem – here, those conclusions are reconsidered and valued prior to their respective premises and which, in turn, are reevaluated as well in the case of unsatisfactory results. If the initial representation of the problem is eventually reevaluated,91 insight can occur and the impasse may be broken. Ohlsson distinguishes three main types of changes to mental representation which allow for breaking an impasse: elaboration, re-encoding, and constraint relaxation.92 Elaboration occurs when the initial representation of the problem is incomplete – that is, when another piece of information (already stored in the memory) is indispensable for the answer to be reached. This information can be attained with the use of short-term or long-term memory knowledge, usually by studying the problem and noticing the relevance of previously omitted fact.93 The second process helping to break an impasse, re-encoding, operates under the assumption that the initial representation of the problem is fundamentally mistaken.94 Finally, the constraint relaxation process holds that the wrong representation pertains to the solution of a problem.95
The presented features of The Redistribution Theory provide the conceptual toolbox to introduce a novel perspective in the theoretical analysis of hard cases – conceivably distinct from previously mentioned approaches. This perspective focuses on the mental representation of the problem – that is on the subjective illustration human mind recreates from the facts of the task it undertakes. The perception and understanding of the faced question are not embodied in analytic processes of reasoning – instead, they have their core in personal intuitive experience. Consequently, after being exposed to the problem, the human mind immediately produces the mental ‘model’ of the issue with propositional solving options.96 From the legal-theoretical point of view, the advantage of introducing mental representation lies in underscoring how mental models of inference, which control the process of reasoning in legal cases, are actually constructed by legal minds. For instance, in the scope of the Redistribution Theory, it is possible to assume that divergent solutions to hard cases stem from the fact that lawyers can construct different mental models of the same hard case – and that can happen because of the variety of their individual, subjective experience of the legal system and legal normative standards, embodied in their legal intuition.
Summarizing this section, the goal of presented intuitive approach is not to create a general theory of legal reasoning.97 Instead, intuitive approach provides the necessary means to expand the understanding of mechanisms laying behind legal decision making. As these mechanisms are either omitted by legal theorists, or introduced with scarce consideration of legal normative standards, the presented perspective delivers the promise of connecting classical legal theoretical view on legal reasoning and its psychological counterpart. The aforementioned formulates the main purpose of the intuitive approach, and that is to reduce the loophole between legal theory and legal practice – i.e. between the manner of how legal reasoning is conceptualized by lawyers and how it actually works.
The section above outlines the relevance of intuitive approach for legal-theoretical assessment of reasoning in hard cases. However, to directly illustrate how the presented perspective may be informatively profitable for legal theorists, the next section applies the intuitive approach – with the specific usage of insight – to reconsider and reconceptualize two examples of well-known hard cases: Riggs v. Palmer and Owens v. Owens.
5. Legal reasoning in hard cases: An intuitive approach
The main rationale behind the intuitive approach is stated in the claim that legal-theoretic models of reasoning may arguably be more accurate and profitable for the theory of law – if based on the scientific investigation on intuitive and intuitively-related mental mechanisms.98 Notwithstanding the foregoing, the relevance of the intuitive approach is not merely general. The presented analysis can have a concrete application, which constitutes its several merits, indicated later in this section. Below, the Redistribution Theory is propositionally introduced to reconceptualize the Riggs vs Palmer hard case under the assumptions of intuitive approach. Additionally, the effect of the former is juxtaposed with a number of Dworkin’s notions on regarded legal issues.
Riggs vs Palmer is the first case used by Ronald Dworkin in his discussion with Hart to distinguish the principles of law from rules of law.99100 The case was brought against Elmer Palmer, who murdered his grandfather to prevent him from changing his last will and thus denying him his inheritance. Dworkin argues that the judges of the New York Court of Appeals overruled the rule of law, giving priority to the legal principle. The statutory regulations found that the will of the testator can in no circumstances be controlled or modified and this interpretation was recognized by the Court. However, it was brought under the consideration of the judges that such an interpretation stands against the legal principle that ‘no one shall be permitted to receive profit from her or his crime’. The final verdict upheld the latter principle as fundamental for the system of law and therefore Elmer Palmer did not receive his inheritance. Interestingly, a similar question was addressed by the Supreme Court of North Carolina a year before the Riggs vs Palmer case was considered. In the case Owens vs Owens,101 the judges stated that although ‘the unnatural and wicked act of taking her husband’s life’ was morally detestable for the plaintiff, who was the wife and a co-murderer of Mr. Owens, they could not find ‘any legal obstacle’ which ‘can be in the way of her seeking to get what the law in unqualified terms gives her’. The respective rules of law were approximately equipollent for both courts. Importantly, in the context of intuitive approach it is additionally possible to hypothesize that the experience-based rules of reasoning were also similar in both cases, as the education and practice of the judges was arguably based on the premises of the same legal system. In 1888 (Owens vs Owens) and 1889 (Riggs vs Palmer), the dominant understanding of how judges should proceed and decide cases was based on John Austin’s version of analytical positivism. Without introducing the full scope of Austin-based theory,102 one of the main assumptions of 19th century American positivism urged court judges to interpret the legal prescriptions as literally as possible.103 Moral issues were not allowed to influence judicial decisions, since it was the right of the legislature to provide laws and the obligation of courts to execute them in a way they are delivered by the ruler.104 Crucially for the future deliberation, moral and ethical decisions are also based on human intuitive mechanisms, which makes it a possible scenery for the occurrence of insight.105 Moreover, the former legal assumptions directed the education of the lawyers, as well as the judges. The court judge was therefore trained to enact the laws in court in a positivistic manner. Put differently, judicial intuition of the judges in both courts should plausibly deliver similar answers to the problems based on analogical legal issue. Yet, the final judgments of Owens vs Owens and Riggs vs Palmer were almost mutually opposite.
Surprisingly, the aforementioned considerations can support the usefulness of intuitive approach to Riggs vs Palmer, with the starting point in the assumption that legal education can arguably create legal intuition, which, in turn, can influence legal decisions.106 Additionally, within the scope of this article Riggs vs Palmer is considered as indeterminate by legal reasoning. There are two main arguments for supporting this statement: first, the case was judged with a dissenting opinion constructed by Judge John Gray, and secondly it created a tremendous number of legal disputes, starting with the presented polemics of Hart and Dworkin. The controversy in judicature, as well as in legal theory, regarding whether or not the judgment over Riggs vs Palmer was appropriate, have, hence, undoubtedly arisen in the domain of law.107 The two presented factors, therefore, mark the Riggs vs Palmer case as being indeterminate from the point of view of the proposed analysis, accordingly to the argumentation given in section 2.
With abovementioned assumptions, Dworkin argumentation may arguably be reinterpreted in some of its parts within the scope of the intuitive approach. The latter allows for an investigation of Riggs vs. Palmer which differs in two respects from its classical legal-theoretic assessments. Firstly, it revises the role of intuition in solving the considered case, and secondly, it perceives the normative standards driving judicial minds as intuitively-based. Consequently, the fundamental question to answer here – being simultaneously the one of the crucial issues justifying the whole presented argumentation – is on what basis judges, or lawyers, make their decisions. This matter also appears to be at the heart of previously presented legal-theoretical accounts of Hart and Dworkin.
From the perspective of the Redistribution Theory of Insight, in the case of Riggs vs Palmer, judicial experience based intuition would presumably deliver the initial representation of the task based on the premise that the law should be executed literally with the exclusion of subjective moral issues.108 Analogically to Ohlsson, this initial view could dictate the subsequent steps of understanding the problem. In the presented example, those steps could consist of the set of inferences, such as ‘the system of law is complete’, ‘there is a legal rule which gives the heritage to the plaintiff’, ‘there is no legal rule which provides otherwise’, ‘the rule that a murderer should not inherit is moral, therefore it cannot be applied’ et cetera.109 This set of intuitive rules of legal mind creates judicial intuition which, in turn – according to the intuitive approach – determine judicial verdicts by the influence on their process of decision making.
The question occurs in terms of the scope of the difference between the Owens vs Owens and Riggs vs Palmer verdicts, namely what could cause the substantially different decisions in similar cases, since the intuitive cues appears to be similar for both courts.110 This difference cannot be explained on the basis of the legal theories presented in any other way than by adjusting the existing rules of the specific normative system to make it capable of introspective perception. The intuitive approach, however, can propose a more scrupulous and illuminating perspective. According to Ohlsson, the final stage of the process of decision-making initiates the process of the valuation of the solution. Assuming that both of those cases have analogous initial representation, and the intuitive set of experience-based rules is congruent, the chosen final options would probably be similar – that is, in both cases the plaintiff who murdered his devisor should receive their inheritance, not excluding his or her criminal punishment. As stated in the justifying opinion of both courts, this option was valued against the moral intuitive rule that the murderer should not profit from his or her crime. From the perspective of the Redistribution Theory of Insight, the difference may lie in the effect of the valuation. In the Owens vs Owens case, the judges stated that it was the role of the legislator to protect morality and since their own role was to execute laws directly, they could not be encumbered with moral responsibility. No insight was therefore needed to ensure the final verdict in comparison to Riggs vs Palmer.111 In this second case, however, the final decision differed. According to the Representational Change Theory, the answer was presumably valued negatively because of moral intuitive cues112 and this evaluation spreads to the previously accepted layers of understanding. As a result, some of them are rejected as leading to an undesirable conclusion and a reevaluation of its premises occurs. However, this reveals alternative ways to answer a problem. Assuming that in the presented case the rule ‘a judge must obey the literal meaning of the rules’ was evaluated as leading to the undesirable conclusion, and its premise is based on the intuitive positivistic ideology which had been learned by the judge, the negative evaluation may change this perspective and open up new possibilities of introducing the moral intuitive solution. This is the stage when – according to Ohlsson – insight occurs. The judges in Riggs vs Palmer were restricted by the constraints of their own intuitive cues but, by negatively evaluating the options which these intuitive cues proposed in Riggs vs Palmer, they were forced to reject the rule that ‘no moral rules can apply to the case’. This rejection opened up a path to the previously blocked moral intuitive solution that implied the rule ‘no person shall gain profit from her or his own crimes’. The final verdict of Riggs vs Palmer was subsequently derived by means of intuition.113
The above-introduced illustration reveals the distinction between the intuitive approach and previously presented conceptions regarding hard cases. As it appears, the central issue, which legal theory attempts to solve in the problem of hard cases, is of a normative nature and pertains to the question of the correct understanding of law. Hart’s and Dworkin’s argumentation is, therefore, concentrated on their subjective perceiving of the background of the legal system, with the actual process of legal decision making serving as rather folk-psychological, secondary explanation.114 Accordingly to the intuitive approach, however, the decision in legal case is not wholly available for the introspective analysis. From this perspective, the proposition of Dworkin and Hart are not genuine explanations of how judges made their verdicts in these cases, but rather a refined rationalizations of these judgments.115 The intuitive approach is different, for it perceives judges as real-world agents whose decisions are based on their actual legal intuition.116 Simultaneously, the proposed view does not exclude the normative aspect of legal reasoning – instead, it reassess them with regard to the actual features of lawyers’ minds.117
The intuitive approach assumes that legal professionals, including judges, are educated and trained specialists in the field of law. Consequently, the aforementioned share common principles of both knowledge and intuition.118 The pure conceptions of legal theory are of secondary usage within its scope – although they remain indispensable to ensure logical or argumentative consistency crucial for normative assumptions. Simultaneously, the presented view does not establish a completely novel perspective on the legal system, for it perceives the assumptions generated by theoretical findings as future fundaments of knowledge and intuition of the new generation of legal practitioners. Notwithstanding the foregoing, the proposed perspective differs from the traditional frameworks of legal reasoning, since for the intuitive approach it is not the law and its normativity which states the rules of the legal system, but legal intuition.
To summarize, considering the scope of this work, the presented model of conceptualization can easily be adapted to different examples of hard cases. The means of the Redistribution Theory of Insight provide several advantages over some traditional legal concepts embodied in top-down theoretical approach,119 such as those of Hart or Dworkin. First, it can be experimentally verified, as nowadays there exists a multitude of scientific possibilities to examine the occurrence of insight in problem solving. Second, it ensures a descriptive explanation of the process of reasoning in hard cases, which can be the basis for a normative theory. Addressing this process in the opposite way – that is, to ensure a theoretical clarification on the basis of a normative concept – is arguably less profitable (although not futile), since purely introspective explanations are likely less accurate in most cases. Third, the intuitive approach creates a partially new perspective for the legal system, one which focuses on the intuition of legal practitioners and, as follows, on the process of learning and teaching the law.
The proposition of introducing psychology to the legal domain is hardly new – at the same time, however, several indications of presented analysis can arguably be considered as a novel view for the legal theory. The most vital thesis for the intuitive approach assumes that the legal system is a consequence of legal intuition. This perspective can be illustrated as being especially effective in terms of the phenomenon of hard cases and legal theoretical approaches to the topic of generating different solutions in similar incidents by lawyers. The introduction of the Redistribution Theory of Insight assumes that the indetermination of a legal state, understood as a possible or factual court case, generates a decisive problem which is solved by legal specialists – that is, human beings trained to be fluent in the law. As follows, according to presented psychological research, their decisions are at least partially subject to their intuition – that is, to the tacit knowledge and inferences of the legal domain which have been learned by expanding their practical experience. Those assumptions not only justify the proposed perspective of legal analysis but show its advantages in terms of accuracy, since it is based on psychological, experimentally verified presuppositions. The intuitive approach, therefore, may arguably be more accurate than traditional attempts to theoretical investigation on legal reasoning. At the same time, its purpose is not to diminish the traditional conceptions of legal theory but rather to emphasizes the validity of its reevaluation and gives researchers in the legal domain the conceptual tools to do so.
The intuitive approach is not limited to one psychological theory alone, nor to the legal phenomenon of hard cases. Simultaneously, it shares the general principle that the basis of reasoning in the legal domain is mainly embodied in legal intuition. This thesis, however, does not create limitations in terms of its research methodology for interdisciplinary studies of law and psychology. As presented above, the proposition of the implementation of insight with the use of Hutcheson’s theory of hunch has already been presented by scholars. The concept, based on the similarities between Hutcheson’s description of judicial reasoning in hard cases, does not elaborate on the processes of acquiring the state of insight problem solving by judges and on proceeding with the available information to secure the verdict. Those two problems appear to be crucial in the interpretation of Riggs vs Palmer. Nevertheless, the aforementioned proposition may generate results in the context of multidimensional analyses of the minds of legal specialists. The basic premise – that intuition generates most of the answers to legal problems – appears to be accepted herein. Therefore, there is no reason to exclude such attempts from exploring an intuitive approach to the legal domain.
The intuitive approach does not exclude the experimental verification of its premises. Conversely, it urges researchers to examine the basic assumptions of its particular implications, as well as its general ones. Such analyses may be profitable for the better understanding and conceptualizing of the process of reasoning in the legal domain in the context of overall research on human decision-making and problem solving. Eventual positive verification of the former may in consequence put the interdisciplinary studies in the driving seat.