The recent nomination of Judge Sonia Sotomayor by President Obama sparked once again the political debate on the objectivity of the appointed to the United States Supreme Court. Republicans, even though pretending to be unbiased, started to fear that this Obamanian judge would undermine President Bush's long lasting efforts to draw up a conservative Court. Judges seated at the Supreme Court are often regarded as judicial activists, meaning judges who are going beyond the power and are creating law, instead of interpreting it strictly. This is the myth of the so-called open area, a gap in which a judge may create law during a case. Thus, it is believed to be crucial to appoint a judge who is presumably on your side to leverage the Court's decisions, according to your ideology or political stance. In the long term, judicial decisions might support your policy and comfort your party's position.
[...] I do believe that a greater recognition of judicial intuitionism but also other forms of intuitive reasoning such as common sense, good judgment or even emotions would not weaken judicial decision making. There is no absolute truth. A case has greater chances to be properly solved if a judge uses several tools rather than just a single and imperfect one. The doctrine, especially formalists and legal realists, discussed a lot these issues. Even though it would be impossible to comment the positions' adopted by scholars and this is not the object of this paper I would like to emphasize Hutcheson's statement. [...]
[...] To what extent judicial intuitionism affects the judge's legal reasoning in Common Law? The recent nomination of Judge Sonia Sotomayor by President Obama sparked once again the political debate on the objectivity of the appointed to the United States Supreme Court. Republicans, even though pretending to be unbiased, started to fear that this Obamanian judge would undermine President Bush's long lasting efforts to draw up a conservative Court. Judges seated at the Supreme Court are often regarded as judicial activists, meaning judges who are going beyond the power and are creating law, instead of interpreting it strictly. [...]
[...] Judicial intuitionism tends to be attributed to the legal field, intrinsically more complex, and relying more on experience. Good judgment may theoretically be acquired by everyone, including non-legal practitioners without any experience. Thus, unlike good judgment, judicial intuitionism is the result of unconscious preconceptions that stem from a unique and strong experience. The main consequence of the ‘experience-to-intuitionism' causal link is that the more experienced a judge is, the less he will consider and be leveraged by the arguments or evidences put forward by lawyers. [...]
[...] More particularly, I will explain why judicial intuitionism should be considered as one of the best or even the best legal reasoning process in Common Law. Characterizing judicial intuitionism Intuitionism is defined by Posner as followed: faculty of intuition that enables a judge [ ] to make a quick judgment without a conscious weighting and comparison of the pros and cons of the possible courses of action is best understood as a capability for reaching down into a subconscious repository of knowledge [ In other words, a judge might quickly decide a case thanks to his Freudian unconscious. [...]
[...] A solution in the training of judges and the practice of law? I have pointed out that intuitionism seemed biased, without really being it, but also very efficient in terms of decision-making. Some commentators remain suspicious because of the so-called opacity around the concept of judicial intuitionism. They argued that the real problem was not the method itself but the training of judges that could lead to such an opaque method (to them), questioning thus judges' methodological rigor. Besides mere occasional legal education seminars or orientation sessions, Common Law judges are not actually ‘trained'. [...]
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