A Pragmatic Justification of the Judicial Hunch

Abstract:     
A Pragmatic Justification of the Judicial Hunch argues that Judge Joseph Hutcheson's famous hunch theory of judicial decision making provides a compelling solution to the daunting task of judicial decision making in an age noted for an increasing explosion of factual complexity and an increasing awareness of the indeterminacy of law. Hutcheson claims that judging is not a matter of deductive logic as advocated by strong legal formalists or technical reasoning as advocated by law and economics. Rather, the best way of determining the just result is for judges to consider all the relevant facts and legal precedent and to wait for a hunch or a "jump-spark connection between the question and decision." In other words, judges should expose their minds to the full complexity of the case and use their intuition or imagination to determine the just decision. Surprisingly, the hunch theory seems both familiar to how we understand practical decision making in general but foreign to how we usually understand judicial decision making. It seems to suggest that judges arbitrarily decide cases based on a subjective feeling that cannot be verified. This article, however, claims that William James's pragmatism provides an epistemological justification of the hunch theory that saves it from arbitrariness. James's pragmatism not only justifies judges relying on hunches but also provides pragmatic conditions that discipline judges against relying on idiosyncratic hunches. Finally, given this epistemological justification, this article argues that Hutcheson should no longer be understood as a legal realist.

Number of Pages in PDF File: 36

Keywords: Legal Theory, Pragmatism, Jurisprudence, Legal Realism, William James, Legal Indeterminancy

JEL Classification: K1, K3, K4, K10, K19, K30, K39, K40, K49

Accepted Paper Series