Judgment intuitive the function of the hunch in judicial decision
JC Hutcheson Jr - Cornell lq, 1928 - HeinOnline
JC Hutcheson Jr
Cornell lq, 1928•HeinOnlineMany years ago, at the conclusion of a particularly difficult case both in point of law and of
fact, tried to a court without a jury, the judge, a man of great learning and ability, announced
from the Bench that since the narrow and prejudiced modern view of the obligations of a
judge in the decision of causes prevented his resort to the judgment aleatory by the use of
his" little, small dice" he would take the case under advisement, and, brooding over it, wait
for his hunch. To me, a young, indeed a very young lawyer, picked, while yet the dew was on …
fact, tried to a court without a jury, the judge, a man of great learning and ability, announced
from the Bench that since the narrow and prejudiced modern view of the obligations of a
judge in the decision of causes prevented his resort to the judgment aleatory by the use of
his" little, small dice" he would take the case under advisement, and, brooding over it, wait
for his hunch. To me, a young, indeed a very young lawyer, picked, while yet the dew was on …
Many years ago, at the conclusion of a particularly difficult case both in point of law and of fact, tried to a court without a jury, the judge, a man of great learning and ability, announced from the Bench that since the narrow and prejudiced modern view of the obligations of a judge in the decision of causes prevented his resort to the judgment aleatory by the use of his" little, small dice" he would take the case under advisement, and, brooding over it, wait for his hunch. To me, a young, indeed a very young lawyer, picked, while yet the dew was on me and I had just begun to sprout, from the classic gardens of a University, where I had been trained to regard the law as a system of rules and precedents, of categories and concepts, and the judge had been spoken of as an administrator, austere, remote," his intellect a cold logic engine," who, in that ratified atmosphere in which he lived coldly and logically determined the relation of the facts of a particular case to some of these established precedents, it appeared that the judge was making a jest, and a very poor one, at that.
I had been trained to expect inexactitude from juries, but from the judge quite the reverse. I exalted in the law its tendency to formulize. I had a slot machine mind. I searched out categories and concepts and, having found them, worshiped them. I paid homage to the law's supposed logical rigidity and exactitude. A logomacist, I believed in and practiced logomancy. I felt a sense of real pain when some legal concept in which I had put my faith as permanent, constructive and all-embracing opened like a broken net, allowing my fish to fall back into the legal sea. Paraphrasing Huxley, I believed that the great tragedy of the law was the slaying of a beautiful concept by an ugly fact. Always I looked for perfect formulas, fact proof, concepts so general, so flexible, that in their terms the jural relations of mankind could be stated, and I rejected most vigorously the suggestion that there was, or should be, anything fortuitous or by chance in the law. Like Jurgen I had been to the Master Philologist and with words he had conquered me. I had studied the law in fragments and segments, in sections and compartments, and in my mind each compartment was nicely and logically arranged so that every case presented to me only the