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eading the same newspapers and watching the same television programmes, with the
court affording unique opportunities
of seeing the ordinary man in action, not in a general way, but in
connection with such of his affairs as the law impinges upon… They
would be blockheads if they did not absorb from what is so constantly
acted out before them a sense of the ordinary man’s attitudes in the
situations with which the law has to deal.
Devlin, 1979, p. 23
Lord Devlin suggests that within the combination of the judge as an ordinary man with
expert skills in law and full legal training, is embedded the idea of open justice. Within
this portrayal positivist ideals are entrenched: the judge is an impartial legal specialist
whose authority is given by mandate from the crown and whose role is to apply the law
of the land (p. 87). However, Lord Devlin acknowledges the role and discretion of the
judiciary in developing law (p. 178) and the necessary role of judicial values when at
times a judge will have no other guide than his own sense of justice (p. 181). While
Lord Devlin denies that judicial discretion allows the modification of law so that justice
can prevail, using the analogy of a road map, he concedes that “the judge is put on a
looser rein and in certain parts of the country left to find his own way” (p. 101). Within
this positivist legal idyll, “impartiality and the appearance of it are the supreme judicial
virtues” (p. 4; emphasis added).
The literature also refers to the use of intuition, instinct or hunch in judicial decision
making (Dworkin, 1986, p.10; Eckhoff, 1976, p. 241; Mnookin, 1975, p. 274). The
following statement captures the essence of the perceived role of instinct or hunch by
legal decision makers themselves.
They [judges and lawyers] say that law is instinct rather than explicit
doctrine, that it can be identified only by special techniques best
described impressionistically, even mysteriously. They say that judging
is an art not a science, that the good judge blends analogy, craft,
political wisdom, and a sense of his role into an intuitive decision, that
he “sees” law better than he can explain it, so his written opinion,
however carefully reasoned, never captures his full insight.
Dworkin, 1986, p. 10
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