An Intuitive Approach to Hard Cases

Abstract

The article proposes an intuitive approach to the so-called ‘hard cases’ in law as an alternative to traditional legal-theoretical accounts of this phenomenon. The main thesis of the intuitive approach is that all judgments and decisions made in a legal setting – including both legal practice and legal theory – are intuition-based. Hence, conceptualizations of legal phenomena can be made more accurate if they are constructed with the use of scientific knowledge on the role of intuition in legal reasoning. An exemplification of this approach is presented in the context of ‘hard cases’. Traditional legal-theoretical accounts of the latter, such as Hart’s and Dworkin’s, are juxtaposed with the Representational Change Theory of Insight. The proposed analysis claims that the Representational Change Theory allows for a more plausible and comprehensive account of legal reasoning in hard cases in comparison to the traditional legal-theoretical views on this issue.

Keywords: law & psychology, hard cases, intuition, insight, legal reasoning