Research question: Intuition

Intuition is one of the main elements in Paul Scholten's theory. Descriptions focusing on this element are welcomed.

Articles submitted on this research question

  • Judicial discovery’ of the law
    Author:Niels van Manen
    Keywords: analogy, syllogism, idea of law, informal rules, intuition, law as an open system, refinement of law, subsumption
    This essay does not concern the question of how courts ought to decide cases. That is a normative question, from the field of legel theory, jurisprudence or the philosophy of law. Like Paul Scholten in his General Method of Private Law, the concern in this essay is a more factual approach, a sociological analysis. This essay is the result of professional involvement of some decades in the field of the sociology of law and some five years experience as a full time judge in the criminal branch of the Amsterdam Court of Appeal. This essay is in no way based on representative data. It is a report on my observations and my reflection thereof. In the decades before the publication of the General Method of Private Law the dominant view (or the dominantly presented view) was that judges could apply the law mechanically. Therefore, preferences of the judges were unimportant. Scholten did attack this view. If preferences of judges are not important, one cannot doubt about the correctness of the decision. Scholten, as I myself perceived as a young legal scholar, was not only a well respected legal scholar but also, in his General Method of Private Law, putting exactly this Judicial Myth to an end. He even stated: in every decision the judge adds something to the positive law. This essay deals with the usefulness of concepts like secondary rules, informal rules and general principles. The example of the changing meaning of the unus testis, nullus testis-rule is used to clarify the instability of positive law, giving way to a tentative analysis of different sources for judicial decisions. Compared to the first submitted version of this essay, the current version has been substantially adjusted as a result of new insights and constructive critics, and adapted to the author's instruction of the DPSP.
    Views: 1069, Downloads: 565

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