The Discovery of Law and Intuition (Rechterlijke Rechtsvinding en Intuïtie)

Abstract

The paper deals with the question on the level of philosophy of law and sociology of law how judges arrive at their decisions. From the turn of the 20th century onwards, the debate in Europe has abandoned the idea of 'law as a closed system' towards 'law as an open system'. The consequence was, however, that judicial decisions could non linger be rooted in the law, but in some other set of values. Dutch scholars pointed at intuition, although this concept is rather individualistic and subjective, thus leading to questions about shared meaning, acceptance of new decisions as renewals, or mistakes. Groups of professionals differ considerably in their 'folk laws', as groups of laymen do.

The enlarged paper was presented at the symposium The Intuition of the Judge and Informal Rules (Law Faculty, University of Amsterdam (UvA, NL), april 9th 2010, organized by dr E.A. Huppes-Cluysenaer and Prof. dr A.J. Hoekema. Speakers: dr A.T.M. Schreiner (chair, UvA), dr Carel Smith (Leyde University), Dr Tommi Ralli (Bremen, Zentrum fúr Europäische Rechtspolitik) and Dr. Jonathan Soeharno (Montaigne Institute of Utrecht University, NL, and lawyer at De Brauw Blackstone Westbroek in Amsterdam, NL).

Dr Niels F. van Manen was until January 2009 lecturer in de Law Faculty of the University of Amstedam in the Department of General Jurisprudence (Sociology of Law) and is since then judge in the Court of Appeal in Amsterdam, The Netherlands.

Note: Downloadable document is in German.

Keywords: rechtsvinding, intuïtie, open systeem, hiaten, Lücken, Scholten, Meijers, Zitelmann