The Perceptive Judge

Up until today the way judges perceive has received little attention in legal discourse. Adjudication is most often conceptualized as a practice in which judges apply rules and principles. The focus has predominantly been on the actual decisions judges take, the underlying justificatory rules and principles and the meaning of the decision for the legal system. The selection, determination and valuation of the facts of the case are tacitly considered unproblematic.

This paper by contrast puts judicial perception at the centre of adjudication. It offers a philosophical account of judicial perception that understands it as a special ethical - and thus character dependent - skill that a judge needs in order to adequately cope with the case he is confronted with. It proceeds as follows. First, I briefly touch upon the question why judicial perception has received little attention in legal discourse and how this is, at least on the conceptual level, related to dominant philosophical premises in practical philosophy. Next, the central features of judicial perception will be discussed and subsequently the question will be addressed how we can account for substantive and legal bearing of judicial perception. We shall see that in this regard ‘thick (legal) concepts’ play a vital role. In addition, I will briefly discuss the role that explicit rules and principles have in an account of adjudication that gives a prominent place to judicial perception. Throughout the text McEwan’s novel The Children Act is used as illustrative source.