Research question: Intuition

Intuition is one of the main elements in Paul Scholten's theory. Descriptions focusing on this element are welcomed.

Articles submitted on this research question

  • Judicial discovery of the law
    Author:Niels van Manen
    Views: 3036, Downloads: 820

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Niels van Manen: The article was on the website since 2014. Until publication in 2020 it had 3005 views and 803 downloads
Van Manen describes how judges jump from ice floe to ice floe, with each new ice floe slowly sinking so that the judge has to jump to the next ice floe every time a new legal question needs to be answered that has not yet been authoritatively decided upon. He refers in this respect to Scholten’s General Method and Hart’s Concept of Law. Both authors explain the difficulty in determining the minor premise by which a general rule must logically be applied to an individual case. As van Manen notes (footnote 31), Scholten argues that the problem of the minor term is always present, while Hart restricts it to hard cases. Van Manen draws upon his criminal law practice to show that a judge is often confronted with this problem, which leads to the phenomenon of jumping judges.
Van Manen observes that Hart attempts to solve the problem of the minor term by introducing secondary application rules, and that some decades later sociologists and anthropologists did the same with the introduction of informal rules. Van Manen argues that these attempts merely shift or even hide the problem and that application rules will in turn also be confronted with the same problem of the minor premise. Van Manen suggests that Scholten should have been content with the conclusion that judges have nothing else to go on than their own intuition about law when they take a leap in making their final decision. He rejects Scholten’s belief that Welt Geist and divine power are the only two possible sources of a meaningful whole constituted by all these individual intuitive leaps. Van Manen questions why only these two possibilities would exist, noting that Scholten’s reference to Christian divine power would be meaningless to agnostic readers.

 

Possible themes for new article submissions to Intuition

- Van Manen’s criticism on secondary and informal rules underscores Scholten’s view that every case is potentially a hard case. It seems important to discuss this further, especially because Hart’s example of the hat and the church, which van Manen uses, refers directly to Rickert.1 Rickert argues that the meaning of concepts such as ‘sermon’ are experienced as the same by different individuals who on the basis of this alone constitute their membership in one specific congregation. Such ‘meaning configurations’ held in common by many persons within a people or an age, make it possible to ‘discover,’ for example, the real Greek or German spirit. Rickert thus developed, as he explained, his sociological method of Verstehen as an elaboration of Hegel’s theory. The main point here would seem to be the tautological foundation of the meaning configurations.
- Van Manen’s image of the jumping judge is an external view which not only rejects the sociological assumption of shared experiences, but also the idea of a subjective truth. The main question here seems to be whether this view ends up in pure relativism or in a substantial view of intuition. Van Manen’s practice as a judge plays an important role in the article. He doesn’t give a description, however, of what intuition meant for him when deciding cases. Is intuition something like a black box? Did he sometimes toss a coin to decide a case? A further comparative analysis of different conceptions of intuition would be relevant in this respect.
- Van Manen criticizes Scholten’s two alternatives of Weltgeist (Hegel) and divine power (Christian belief) and asks whether other possibilities exist. The main issue here seems to be whether (and if so, how) these two alternatives can be reconstructed as full contraries. At first sight it seems fully possible to believe in divine power and at the same time be a Hegelian who believes in a Weltgeist. Further elaboration of this issue is welcome.

 

1. Rickert, The Limits of Concept Formation in Natural Science., 150 ff and 181ff.

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