Iain McGilchrist is a psychiatrist who has a theory connecting the development of the human brain into "right" and "left" halves, with the development of the Western World. In his book The Master and His Emissary, McGilchrist argues that although the brain is not divided, in the sense there are different functions working in different hemispheres, the different halves of the brain process information differently resulting in very different results. The right or "master" side is detailed oriented and relies upon the left or "emissary" side to provide context and meaning. The problem with the divisions is that the left side has developed its own agenda and humans increasingly rely on the left side to direct them personally and socially. This leaves us with a gap in our true functioning as we emphasize the "what" of nature instead of the "how." For a different explanation, I strongly recommend this animated video of McGilchrist's theory. It is excellent.
But what does this theory have to do with law? According to McGilchrist, the right side is very good at intuiting a result and thus better able than the left side to make the right decision based on context and facts. It is this intuitive side, McGilchrist argues, we are sorely lacking in today's society. We have so embraced fact and reason, we no longer embrace the use to which intuition and feeling can bring us success. Is this true of law as well? Does intuition have any place in this arena of reason and logic?
I looked for intuition as an acceptable legal concept. Of course, the concept of intuition may be masked behind a judge's use of common sense in finding the facts of a case. The traditional principle permits a judge to draw conclusions based on a theory that a person intends the natural consequences of his or her actions. Is the judge just really applying her intuition or is it pure reasoning and logic?
The best way to delve into this conundrum is to look at jury cases. Juries tend to articulate more readily when they are struggling with an issue. Juries also do not have the legal training which encourages them to articulate their findings in the language of principle and precedent. The Northwest Territories Court of Appeal dealt with this scenario in the 1998 Lam case. Lam was charged with narcotic offences and was tried before a judge and jury. The jury was deliberating well into the night when they sent a note to the judge which read as follows:
We all agree to 11 key facts. We all agree these facts point to a guilty verdict. One of us feels uncomfortable at a gut intuitive level. Please advise how we weigh intuition versus facts - evidence.
The trial judge, obviously frustrated by the question, exhorted the jury to use only the "rule of evidence" in deciding the case and gave them a limited amount of time to come to their verdict. Th Court of Appeal found no difficulty with the judge's instructions. In their view, the judge was not advising the uncomfortable juror to conform but to simply be guided by the evidence. Articulated intuition was not legally acceptable.
The Supreme Court of Canada grappled with a similar issue in the 2009 Griffin case. Circumstantial evidence was at the centre of the case. The jury came with a question during deliberations: can reasonable doubt be based on feelings and intuitions? In response, the trial judge explained that individually they should be able to explain their decision. The jury ultimately convicted. On appeal, the Quebec Court of Appeal overturned the finding but the Supreme Court of Canada reinstated the conviction on the basis verdicts cannot be based on "feelings and intuition" but as previously decided in the Lifchus case, "on reason and common sense."
Seemingly then, there is no room for the right side in the legal analysis. Or is there? Is not common sense, as earlier argued in this post, not just an almost "scientific" way of describing a person's "gut feeling?" Indeed, in a strong dissent in Griffin, Justices Lebel and Fish relied on Lifchus for the proposition that jurors are not required to articulate their reasons for having or not having a reasonable doubt. Doubts, may be reasonable yet "are simply incapable of articulation."
Nomenclature may be at the root of this difference of opinion or maybe, as McGilchrist suggests, it is just our right side taking over. Either way, there may be legal intuition; we just can't seem to be able to articulate it.