Of Judges, Law, and the River: Tacit Knowledge and the Judicial Role

Abstract

Judges and commentators on judging have long recognized that the judicial role frequently requires its holders to draw upon some source of inarticulable knowledge. Judge Joseph Hutcheson spoke of it in terms of “intuition,” Karl Llewellyn by reference to “situation sense,” and Justice Potter Stewart by reference to the phrase “I know it when I see it.” This essay, prepared in connection with a conference on judicial education, addresses the topic in terms of philosopher Michael Polanyi’s concept of “tacit knowledge.” Using the example of judging in aesthetic sports as a means of illustration, I suggest that our efforts to identify and limit the influence of improper unconscious influences — ideology, cognitive biases, and the like — must be tempered by a recognition of the ways in which judging necessarily, and desirably, draws on the proper sorts of unconscious influences that make up judges’ base of tacit knowledge.

Keywords: judges, intuition, tacit knowledge, situation sense

JEL Classification: K4, K40, K49