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DIGNIT AS
Revija za človekove pravice
Slovenian journal of human rights
ISSN 1408-9653
The (Ir)rationality of Judicial Decision-Making: the Typological Argument 
against a Rigid Separation between the Context of Discovery and the Context of 
Justification of Legal Decision
Marko Novak
Article information:
To cite this document:
Novak, M. (2018). The (Ir)rationality of Judicial Decision-Making: the Typological 
Argument against a Rigid Separation between the Context of Discovery and the 
Context of Justification of Legal Decision, Dignitas, št. 45/46, str. 307-328.
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DIGNITAS n The (Ir)rationality of Judicial Decision-Making: the Typological Argument 
against a Rigid Separation between the Context of Discovery and the Context of ...
Introduction
1
In accordance with legal argumentation theory the entire pro-
cess of adjudication is divided into the process of discovery and 
the process of justification of a legal decision. The first phase of 
deciding, which concerns the process of establishing the upper 
premise as well as the lower premise of logical syllogism, and en-
tails the discovery of all relevant information concerning both 
premises so that a logical conclusion is reached, is part of an inter-
nal process of a judge, which is usually not disclosed to the public. 
Such a process of discovery is often the subject of research into 
the psychology of decision-making. It is the phase of decision-ma-
king that importantly includes irrational elements (i.e. perception 
in the form of sensation and intuition) as well as rational elements 
(such as evaluation in the form of thinking). 
The majority of legal theorists, especially those interested in le-
gal argumentation, have claimed that only the context of justifica-
tion, in which a judicial decision is justified in the reasoning of the 
decision by arguments or reasons, can be rationally reconstruc-
ted. Such scholars rigidly separate the context of justification from 
the context of discovery since they believe the latter includes (in-
tuitive) hunches, which are non-rational and non-logical. For that 
reason, they have preferred to leave this subject to psychologists 
to study the entire process of reaching decisions. However, accor-
ding to Bruce Anderson, here they have unfortunately been quite 
1 
Dr. Marko Novak is an assistant professor of jurisprudence and constitutional law at the European 
Faculty of Law in Nova Gorica, Slovenia.
The (Ir)rationality of Judicial  
Decision-Making: the Typological  
Argument against a Rigid Separation 
between the Context of Discovery 
and the Context of Justification  
of Legal Decision
prof. dr. Marko Novak
1

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DIGNITAS n Legal Argumentation and the Challenges of Modern Europe
unsuccessful.
2
 It seems that legal theorists’ disinterest in the con-
text of discovery and decision-making comes from the traditional 
notion that there is no place in law for irrationality and intuition, 
and that if we must admit that it actually exists it should be minimi-
sed as much as possible in the process of decision-making which 
is left to psychologists, while more law-oriented lawyers should 
deal with the process of justification as the core of rationality in 
decision-making.
In this article I also do not agree with a rigid separation of the 
two contexts of legal decision-making and support a more mode-
rate separation between the two. I realise that in this perspective 
the outcome of my position is similar to that of Bruce Anderson; 
however, I use different arguments to support that.
Thus, in the first chapter I describe the traditional role ratio-
nality has played in the context of legal decision-making and law 
in general. However, this traditional picture of law as being pre-
dominantly a rational activity has been seriously attacked by the 
postmodernist movement that has also tried to deconstruct it, to 
which I refer in the second chapter. In this context I present the 
role of the Critical Legal Studies’ perspective and that of its ance-
stors, the American Legal Realists.
In the third chapter I briefly outline the post-postmodern sta-
tus concerning the role of rationality in law. I particularly refer to 
the contemporary relevance of legal argumentation theory which 
regarding the legal decision-making process has mainly empha-
sised the phase of the justification of legal decisions. However, 
in the fourth chapter I raise the issue of the importance of the 
process of discovery which stems from the fact that our decision-
making process does not only include a rational part, but also an 
irrational part, most notably intuition.
It is intuition in particular that connects both parts, and from 
that it entails that both processes of decision-making could to some 
extent be connected. In order to emphasise the role of (irrational) 
intuition I then use an argument from psychological typology to 
prove that every decision-making process is partly irrational and 
that it is impossible to exclude it from decision-making. Finally, 
instead of claiming the rigid separation of the abovementioned 
2 
B. Anderson, Context of Discovery, Context of Decision and Context of Justification in the Law, 
IVR Encyclopaedia of Jurisprudence, Legal Theory and Philosophy of Law, http://ivr-enc.info/index.
php?title=Main_Page (26. 3. 2010).

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DIGNITAS n The (Ir)rationality of Judicial Decision-Making: the Typological Argument 
against a Rigid Separation between the Context of Discovery and the Context of ...
two phases of decision-making, it is more important to recognise 
their connection and interrelation. However, it is also important 
to put intuition (in the discovery phase) and thinking (in the justi-
fication phase) in the right perspective and still argue their mild 
separation if we prefer reasonable legal decisions.
1. The Traditional Predominance of Rationality  
in Law and Judicial Decision-Making
Law has traditionally been considered a typical rational activity.
3
 
“Rational” usually pertains to the human faculty of reason,
4
 which 
in philosophy is contrasted with experience. Being non-rational, 
such experience can thus exist in the form of religious revelation, 
sensory experience, emotion etc.
5
 Moreover, there has traditio-
nally been a distinction between two types of rationality, namely 
practical and theoretical (also practical and theoretical reason).
6
 
This distinction is recognised even in modern philosophy. Prac-
tical reason is considered to deal with normative questions, such 
as what one ought to do and what it would be best to do. These 
questions are interested in the matter of value and action. In con-
tradistinction with that, theoretical reason deals with reflection, 
with matters of fact and their explanation. It is concerned with 
belief and, as such, is more typical of natural and social sciences.
7
 
Surprisingly, it is not that far from what in scholastic philosophy 
has been understood as the division between ratio and intellectus, 
the former being the ability of a discursive way of thinking, with 
the latter being the ability of direct intelligence.
8
 To some extent, 
this would correspond to the division in the English language be-
tween reason and intellect (or intelligence).
9
3 
The discussion concerning the rationality and irrationality of law is not new among contemporary 
legal scholars. For a discussion about that in Slovenia, see M. Cerar, Iracionalnost modernega prava 
[The (Ir)rationality of Modern Law], Bonex založba, Ljubljana (2001).
4 
The etymology of this English word is as follows: “ME [Medieval English] resound, fr. OF [Medieval 
Old French] raison, fr. L [Latin] ration-, ratio reason, computation, fr. reri to calculate, think; prob. akin 
to Goth rathjo account, explanation.” See Merriam-Webster’s Collegiate Dictionary, Merriam-Webster, 
Inc. (1993), p. 974. 
5 
See, e.g., T. Mautner (ed.), The Penguin Dictionary of Philosophy, Penguin Books (2000), p. 470. 
6 
Gr. practices pertaining to action, in contract with theoretical (gr. theōria viewing; speculation; con-
templation) which relates to thought. Id., pp. 440, 563.
7 
R. J. Wallace, Practical Reason, http://plato.stanford.edu/practical-reason (14. 1. 2010). 
8 
See J. Maritain, Man and the State, The University of Chicago Press (1951), p. 111.
9 
The etymology of these two words, i.e. intellect and intelligence, is as follows: “ME, fr. MF [Middle 
French] or L; MF, fr. L intellectus, fr. intellegere to understand”; and “ME, MF, fr. L intelligentia, fr. in-
telligent-, intelligens intelligent. Merriam-Webster’s Collegiate Dictionary, op. cit., p. 608.

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DIGNITAS n Legal Argumentation and the Challenges of Modern Europe
Furthermore, in a historical perspective, rationality in law has 
had at least two different meanings that have been reflected in 
various legal theories. First, those who have supported a me-
taphysical-rational epistemological approach to law, either in its 
older version (such as Lao-Tsze, Confucius, Aristotle, Cicero and 
Aquinas) or in its modern version (e.g. Geny, Dabin, Cohen, Ful-
ler, Finnis),
10
 have found true law in rational principles that have 
been accessible to persons through their ability to grasp and un-
derstand certain internal idea(l)s (such as God, nature, morality 
etc.). As mentioned, such a manner of the operation of the human 
mind that is directed to the overall connectedness of knowledge 
and the possibility of ideas has traditionally been considered as 
“intellect” (lat. intellectus). Below we will see that such rationality 
was mostly influenced by intuition, as a cognitive function, and 
might thus be called intuitive rationality.
The second understanding of “rational” refers to ratio or to 
the capacity of abstracting, differentiating, analysing, making 
concepts, of applying means to ends (so-called instrumental
11
 
or empirical rationality). Such approaches to legal theory have 
traditionally been labelled empiricist-positivist epistemological 
approaches to the understanding of the concept of law (especial-
ly positivist theories of law).
12
 Such views mostly appeared at the 
beginning of modernity and have to some degree been extended 
to the present.
According to the modern understanding of the concept of 
law, the rationality that is typical of law today is predominantly 
considered to be of a practical character (i.e. practical reason). In 
practical contexts, rationality is the adaptation of means to ends.
13
 
From its social aspect, by its aspiring to (practical) rationality law 
serves important social goals, such as providing social order, sta-
bility and predictability, as well as serving as an important means 
for the resolution of major social disputes.
I accept the general framework of the already mentioned tra-
ditional distinction between ratio and intellect but understand it 
10 
See S. Prakash Sinha, Jurisprudence, Legal Philosophy, West Publishing Co (1993), pp. v-xii.
11 
For a negative perception of such, see M. Horkheimer, Eclipse of Reason, Continuum International 
Publishing Company Ltd. (1974, 2004).
12 
S. Prakash Sinha, op. cit., ibid.
13 
For one of the strongest voices in contemporary legal thought on this, see N. MacCormick, Rhetoric 
and the Rule of Law, Oxford University Press, Oxford (2005), p. 470. Also see N. MacCormick, Practical 
Reason in Law and Morality, Oxford University Press, Oxford (2008).

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DIGNITAS n The (Ir)rationality of Judicial Decision-Making: the Typological Argument 
against a Rigid Separation between the Context of Discovery and the Context of ...
in a different way. I view it according to the philosophic psycho-
logy concerning the understanding of cognitive functions or the 
psychological type theory that was developed by C. G. Jung in his 
Psychological Types,
14
 and was subsequently empirically tested, 
and to some extent even extended, by K. Myers and I. Myers Bri-
ggs.
15
 Myers and Briggs invented a special indicator to measure 
the predominance of certain cognitive functions in tested people. 
That indicator was then patented as the MBTI (Myers-Briggs Type 
Indicator).
16
According to Jung, the four cognitive functions, i.e. thinking, 
feeling, sensation and intuition, are divided into two larger gro-
ups of which one is rational and the other irrational. In this man-
ner, thinking and feeling are rational functions whereas sensation 
and intuition are irrational functions. With irrational functions 
we perceive objects, people, events and ideas, while with rational 
functions we evaluate what we have perceived. In every person, 
Jung argued, there is one superior function, one auxiliary functi-
on, and one inferior function.
17
 Jung’s theoretical inventions were 
empirically tested by Myers and Briggs and their contemporary 
followers.
18
 According to such research, it has been proven that in 
the case of lawyers, the superior cognitive function is to a great 
extent thinking,
19
 as a rational function. The auxiliary functions 
that to some degree direct and determine thinking are both sensa-
tion and intuition.
20
From these findings and in line with the abovementioned tren-
ds in the history of legal thought, it seems that there have been 
two general types of thinking (and rationality) in law. The first 
is the mentioned empirical rationality in which thinking (evalu-
ation) obtains relevant data or information (perception) mostly 
from sensation, by experiencing the facts of a case and the rele-
14 
C. G. Jung, Psychologische Typen [Psychological Types], Patmost Verlag GmbH & Walter Verlag, 
Duesseldorf (1921, 1971).
15 
See I. Briggs Myers, P. B. Myers, Gifts Differing, Davis-Black Publishing (1980, 1995). 
16 
Id., p. xix.
17 
C. G. Jung, Psychological Types, op. cit., ibid.
18 
About the results of such research, see, e.g., S. S. Daicoff, Lawyer, Know Thyself, American Psycho-
logical Association (2004), pp. 32-36, 64-65.
19 
According to these results, the percentage of lawyers with their superior thinking function is around 
75, in contrast with 25 percent of those with their superior feeling function. Ibid.
20 
According to all MBTI tests that I have managed to examine, the ratio between the predominance 
of intuition and sensation as an auxiliary function among lawyers is around 50/50. According to the 
results of the surveyed MBTI tests, it depends, however, on which kinds of legal professions were 
tested. In general, intuition was found to as prevail in the general group of lawyers and law students, 
while sensation prevailed in the event of judges. Ibid.

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DIGNITAS n Legal Argumentation and the Challenges of Modern Europe
vant legal standards by the senses, evaluating such by thinking, 
and making a final decision. In the continuation, I will argue that 
today such empirical rationality is most typically applied in clea-
rer cases. Further, there is a certain use of intuition but in such ca-
ses it is not determinate for the result of the decision-making pro-
cess (so-called instrumental intuition). Secondly, there is also the 
mentioned intuitive rationality which is applied more in unclear 
cases through, e.g., moral legal principles. In this framework, the 
so-called creative intuition is determinate for the result of the de-
cision-making. Here thinking obtains relevant legal information 
from intuition because sensation cannot help much as the text of 
the legal norm has gaps, is vague, ambiguous – in short, unclear.
Finally, everything mentioned above in connection with the 
predominance of rationality in law in general naturally also ap-
plies to judicial decision-making and the judiciary in general, as 
one of the most prominent legal professions. It is the judicial pro-
fession that I mostly focus on in the rest of this article, where I 
discuss in particular the extent to which judges embrace both ra-
tional and irrational aspects of the decision-making process, and 
that their ideal relation is the one in which the irrational is in the 
service of the rational.
2. A Postmodern Attack on the Essential 
Connection between Law and Rationality
2.1. The Critical Legal Studies Movement
A central goal of postmodernism was to deconstruct the “me-
ta-narratives of modernity”.
21
 One such meta-narrative of moder-
nity, especially of the Enlightenment, was certainly the authority 
of rationality and reason.
22
 In comparison with the pre-modern 
world, through the scientific revolution modernity had empirici-
sed reason by instrumentalising
23
 it to become ratio, in relation to 
which reason’s pre-modern intellectual (intelligent) dimensions 
were subsequently left to metaphysics.
In contemporary legal theory, one of the best known attacks 
21 
J.-F. Lyotard, The Postmodern Condition: A Report on Knowledge, University of Minnesota Press 
(1984).
22 
T. Mautner (ed.), op. cit., p. 359.
23 
M. Horkherimer, op. cit., ibid.

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DIGNITAS n The (Ir)rationality of Judicial Decision-Making: the Typological Argument 
against a Rigid Separation between the Context of Discovery and the Context of ...
on rationality in law came from the Critical Legal Studies (CLS) 
movement in the United States in the 1970s and early 1980s. To an 
important extent their deconstructionist approach to legal doc-
trine, exposing the “indeterminacy of the text and delegitimizing 
liberal legalism’s claim about the existence of a knowable, objecti-
ve, and value-neutral (and rational) law,”
24
 certainly represented a 
postmodernist position in legal theory.
25
In contradistinction with liberalism, which claimed that ratio-
nality distinguished legal discourse from other kinds of social for-
ce and that in law there is a rational foundation for doctrine and 
development, CLS rejected such a position as a myth claiming that 
passion
26
 or will are not excluded from law. Moreover, CLS pro-
ponents argued that law was nothing but an expression of politi-
cs, or “an instrument of political propaganda that legitimates the 
class structure by masking exploitation with apparent fairness”.
27
This position of CLS concerning the critique of rationality in 
law was not surprising given that CLS adherents claimed to be de-
scendants of the American Legal Realists (ALR). The ALR argued 
that law and legal reasoning often contain indeterminacy, subjec-
tivism, non-formalism and irrationality, or that “legal reasoning 
can rarely require, in an objective sense, a particular result”.
28
 Mo-
reover, CLS proponents also found support for their ideas in the 
deconstructivist movement regarding the interpretation of texts, 
claiming that texts have no objective meaning and that the foun-
ding of meaning in a text is the result of an act of interpretation by 
the reader and not of an inherent objective meaning of the text. 
In such a manner, the interpretation of a text or a social action is 
allegedly the function of power, not proof. This allegedly contri-
buted to the indeterminacy of the text and the non-existence of a 
knowable, objective and value-neutral law.
29
If CLS took from the ALR the idea that law is necessarily subjec-
tive, informal and irrational, they did not however accept from 
them the notion that the irrational in law is not necessarily some-
thing bad, negative and arbitrary.
30
 This is even more so if we un-
24 
S. Prakash Sinha, op. cit., p. 310.
25 
Also see G. Minda, Postmodern Legal Movements, The New York University Press (1995), p. 126.
26 
See, e.g., R. M. Unger, Passion, Free Press (1986).
27 
S. Prakash Sinha, op. cit., pp. 312-13.
28 
Id., p. 306.
29 
Id., p. 310.
30 
B. Anderson, Context of Discovery, Context of Decision and Context of Justification in the Law, op. 
cit., ibid. Also see B. Anderson, “Discovery” in Legal Decision-Making, Kluwer Academic Publishers, 

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DIGNITAS n Legal Argumentation and the Challenges of Modern Europe
derstand the psychological typology of general decision-making, 
which also applies to the way in which judges decide cases, whi-
ch I will be outlining below. For that reason I will briefly refer to 
their ancestors, the ALR. Given that many ALR were former judges 
at different American courts, their pre-postmodern reflection on 
how judges in concrete cases actually proceed and adjudicate can 
be very useful.
2.2. The American Legal Realists (ALR)
One of the protagonists of the intellectual movement of the 
American Legal Realists was Jerome Frank.
31
 Frank, who at some 
point in his career was a judge, looked at the concept of law from 
a psychoanalytical perspective. In his work Frank explicitly men-
tioned Freud as a representative of the “new psychology”, in de-
aling with certain psychological specialties of an individual that 
might affect the (excessive) emotionality of his or her judgments 
(e.g. impatience, irrational irritation when faced with unpleasant 
thoughts that refer to wishes, hatred, the sense of power, loyalty to 
certain groups).
32
According to Frank, law is uncertain, indefinite and subject to 
unpredictable changes. However, such uncertainty about law is not 
an unfortunate fact but an important social value since otherwise 
society would be too tightly restricted and unable to adjust to the 
reality of incessant social, economic and political changes. What 
is also typical of Frank is his legally realistic thinking claiming that, 
from the perspective of an average man, law is represented by a 
court decision concerning certain facts of the case of a certain 
human being. For such facts there is no prior law until the court 
decides on them. What exist prior to such a decision are only the 
opinions of lawyers and attorneys, which are only speculations 
on how the court will decide.
33
Furthermore, Frank asserted that in terms of psychology the 
process of adjudication rarely begins at the upper syllogistic pre-
mise, on the basis of which the judge only deduces or makes an 
inference. Quite the contrary, Frank opined that judges generally 
make their judgments in the opposite direction, i.e. stemming from 
Dordrecht (1996).
31 
His fundamental work is Law and the Modern Mind, Bretano’s, Inc. (1930). 
32 
Id., p. 206.
33 
Id., pp. 207-208.

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DIGNITAS n The (Ir)rationality of Judicial Decision-Making: the Typological Argument 
against a Rigid Separation between the Context of Discovery and the Context of ...
speculative conclusions made in advance. Judgments are thus ba-
sed on judges’ internal premonitions. He called such premoniti-
ons or stimuli hunch producers, which as political, economic and 
moral prejudices tell the judges to reach certain decisions that 
are formally based on rules and principles. According to Frank, 
there are also other hunches and premonitions that depend on 
the characteristics of an individual judge who is to make certain 
conclusions or decisions. Therefore, in Frank’s opinion , a judge’s 
personal traits, his or her psychological dispositions, prejudices, 
sympathies and antipathies (in relation to, e.g., witnesses or par-
ties to proceedings) decide on what is to be the right decision in 
a particular case. From this perspective, the judge does not differ 
from other “mortals”.
34
Here we can find a similarity between the thinking of a for-
mer American judge, Hutcheson (in 1929), and a Slovenian law 
professor Furlan (in 1933),
35
 to whom I will return later. The fact 
which seems to be decisive for their legal-realistic viewpoints is 
that in their earlier professional careers both were legal practi-
tioners (Hutcheson a judge, and Furlan an attorney). Moreover, 
other American Legal Realists such as Holmes and Frank were also 
judges. By following such use of intuition, the judge a posteriori 
begins to apply rational arguments in order to check (or supervi-
se) whether it is possible by such to justify the conclusion that was 
a priori made by virtue of his or her intuition. This entails that the 
conclusion made in advance, or a priori, essentially determines 
the arguments used in the reasoning. In Frank’s opinion, if this is 
not possible then the judge will have to choose another conclusi-
on except he or she is “arbitrary or insane”.
36
Following Frank if we wish to know something more about 
hunches that contribute to lawmaking we should know the judge’s 
personality. Thus, law changes in accordance with the personality 
of a judge who decides on a certain case. However, such a distinc-
tion between judges cannot be disclosed in connection with the 
writing of their judgments particularly due to their ability to use 
different tricks in order to disguise disharmony between them. 
In such a manner, true irrational inclinations are hidden behind 
34 
Ibid.
35 
B. Furlan, Problem realnosti prava [The Problem of Law’s Reality], Pravna fakulteta in Cankarjeva 
založba, Ljubljana (2002), pp. 145-166.
36 
J. Frank, op. cit., p. 203.

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DIGNITAS n Legal Argumentation and the Challenges of Modern Europe
the veil of a rational structure of reasoning. However, from time 
to time we learn something about judges’ personal preferences 
only through their interviews, biographies, literary works about 
them, as well as from the brilliant and bad reasoning of their deci-
sions. Although rules and principles are foundations of law they 
are only instigations for the activity of judges. Accordingly, Frank 
was certain that the main factor in the operation of law is a judge’s 
personality.
37
In such manner, Frank asserted that law cannot be reliable, cer-
tain and determinate, in the framework of which the wish to have 
fully determined law resembles a child’s emotion or his or her 
longing for a father figure. In Frank’s opinion it was a task of the 
modern person to overcome this father complex. The modern per-
son must become pragmatic and free from this child’s fear from 
his or her parents’ omnipotence and exaggerated respect. Accor-
ding to Frank, such fear and respect are the main bastions of resis-
tance to change. Frank’s ideal was a fully grown-up lawyer (judge) 
who does not need external authority but possesses constructive 
doubt that enables him or her to create law in accordance with a 
developing civilisation. At the same time, such a judge is (to be) 
aware of his or her prejudices,
38
 tak(es) them into consideration, 
and deal(s) with such rationally in order to achieve a decision that 
would be as just (and objective) as possible.
39
Following Frank, judges necessarily have discretion when they 
apply abstract rules to concrete facts, i.e. they necessarily create 
law by making value judgments, since legal creativity is the es-
sence of the life of law. According to Frank, the ideal judge would 
not abuse power but take care of the enforcement of justice by 
applying their knowledge of law and being aware of their potenti-
al prejudices and weaknesses (i.e. his or her human nature). The-
refore, what seems to be one of the main tasks for society, Frank 
argued, is to seek powerful personalities who have enough kno-
wledge and awareness as to their own personalities, which neces-
sarily include certain prejudices, partiality and antipathies.
40
In general the ALR have criticised legal formalists or legal posi-
tivists who claim that law or law application is (fully) determined 
37 
Id., p. 206.
38I
d., p. 212.
39 
Ibid.
40 
Id., p. 210.

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DIGNITAS n The (Ir)rationality of Judicial Decision-Making: the Typological Argument 
against a Rigid Separation between the Context of Discovery and the Context of ...
by mere legal provisions, in the framework of which (according to 
the most extreme position, that of German mechanical jurispru-
dence) judges are to be completely neutral (even mechanical) 
“technicians” who merely apply abstract legal norms to concrete 
facts. The main tasks of the ALR were certainly to destroy the myth 
pointing to such full (even scientific) autonomy of law and the 
narrowly perceived empiricist’s perception of the application of 
law.
I am very aware of the ALR’s valuable contributions to disclo-
sing the idea that law and a lawyer’s psychological predisposition 
are interconnected, and that law is merely a result of the projecti-
on of lawyers’ activities when creating or applying the law. I agree 
with their perspective that law can be indeterminate as it depends 
on, e.g., judges as human beings, and also on how the law is inter-
preted and applied in a particular case. This certainly proves the 
fact that a judge is necessarily subjective when adjudicating cases, 
but this subjectivity, such as a judge’s hunches (intuitive ideas), 
are not necessarily bad if they are taken in the overall context of 
the profession of a judge as a responsible actor. It seems that CLS 
proponents did not take from the ALR the position that irrationa-
lity in law can also be positive, not necessarily negative.
I take into consideration everything that the ALR said regar-
ding the subjective inclination of judges when deciding cases, 
and proceed with some additional (more objective) requirements 
that come up in this connection. As we will see in the section on 
typology and judicial decision-making, the issue of psychological 
typology and law addresses both irrational and rational elements 
in adjudication, and tries to put them in the right perspective so 
that the emphasis is on the value of thinking as the ultimate ratio-
nal cognitive function.
3. The Post-Postmodern Return of Rationality 
in Law: Legal Argumentation Theory and the 
Justification of Judicial Decisions
The fact is that the postmodernist movement in law unmasked 
such as being merely objective, formal and rational in the direc-
tion of also proving its subjectivity, informality and irrationality. 
However, if it was very successful at criticising the traditional pic-

318
DIGNITAS n Legal Argumentation and the Challenges of Modern Europe
ture of rationality in law, it was unsuccessful in replacing it with 
some constructive alternative contents.
Thus, what remains for a post-postmodernist approach in law 
concerning the role of rationality in it, which entails that the irra-
tional cannot finally supersede the rational in law if we would like 
to retain quality legal decision-making, is the fact that “hence in 
the context of law we must count with the irrational rationally”.
41
 
It seems that a post-postmodernist approach in legal theory has 
brought the reaffirmation of rationality in law. A major contribu-
tion to that, especially in the field of public discourse, is Haber-
mas’ work. Habermas is one of the most prominent critics of phi-
losophical postmodernism. Against postmodernism he tried to 
defend argumentative reason in inter-subjective communication 
against postmodern experimental strategies. In his view, postmo-
dernism is nothing but an illicit aestheticisation of knowledge and 
public discourse. Against this, he sought to rehabilitate modern 
reason as a system of procedural rules for achieving consensus 
and agreement among communicating subjects. Insofar as post-
modernism introduced aesthetic playfulness and subversion into 
science and politics, he resisted it in the name of a modernity mo-
ving toward completion rather than self-transformation.
42
 Haber-
mas strongly influenced some of the pioneers of contemporary 
legal argumentation, most notably Robert Alexy.
43
Thus, one example of the “comeback” of rationality in law has 
been the (re)emergence of the theory of legal argumentation, as 
an integral approach that claims that a legal decision is neither just 
the result of a determinate text (the traditional – modern positi-
on), nor only the result of the will of an interpreter (the postmo-
dernist position), but is the decision that must be reasonable.
44
 In 
this sense, it seems that the theory of legal argumentation tries to 
reconcile the tension between the traditional and the postmodern 
approaches when the role of rationality in law is concerned.
In legal argumentation theory a perspective on adjudication 
41 
A. Kaufmann, Rechtsphilosophie in der Nach-Neuzeit [Philosophy of Law in the Postmodern Peri-
od], Decker und Müller Verlag (1992), p. 25.
42 
G. Aylesworth, Postmodernism (2005), in Stanford Encyclopedia of Philosophy, http://plato.stan-
ford.edu/ (05. 02. 2010). Also see J. Habermas, The Philosophical Discourse of Modernity, Cambridge 
University Press (1987). 
43 
Regarding his procedural theory of legal argumentation, see R. Alexy, A Theory of Legal Argumen-
tation. The Theory of Rational Discourse as Theory of Legal Justification, Clarendon Press, Oxford 
(1989).
44 
Also see M. Pavčnik, L. E. Wolcher, A Dialogue on Legal Theory between a European Legal Philo-
sopher and his American Friend, Texas International Journal 35 (2000), pp. 335-386.

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DIGNITAS n The (Ir)rationality of Judicial Decision-Making: the Typological Argument 
against a Rigid Separation between the Context of Discovery and the Context of ...
has been established according to which such is divided into two 
phases: (1) the process of discovery of the premises and deciding 
thereupon; and (2) the process of justifying the legal decision.
45
 
The first phase of legal deciding concerns the reaching of a con-
clusion that appears in the operative provisions of the decision, 
and is carried out on the bases of a legal norm and a factual situati-
on. Such a process of establishing the upper premise as well as the 
lower premise of logical syllogism, and of the thereby connected 
discovery of all the relevant information on both premises so that 
a logical conclusion is reached, is part of an internal process of 
the judge, which is usually not disclosed to the public. The menti-
oned process of discovery is often the subject of research into the 
psychology of decision-making.
46
 It is the phase of decision-ma-
king that importantly includes irrational elements (i.e. perception 
in the form of sensation and intuition) as well as rational elements 
(such as evaluation in the form of thinking). Certainly, the menti-
oned irrational elements, most often intuition, do not appear in 
the reasoning of a decision in which the judge tries to justify his 
or her decision by using only rational means. 
The majority of legal theorists, especially those interested in le-
gal argumentation, have claimed that only the context of justifica-
tion, in which a judicial decision is justified in the reasoning of the 
decision by arguments or reasons, can be rationally reconstruc-
ted. Such scholars rigidly separate the context of justification from 
the context of discovery since in their opinion the latter includes 
(intuitive) hunches, which are non-rational and non-logical. For 
that reason, they have preferred to leave the phase of discovery 
to psychologists to study the entire process of reaching decisions. 
However, according to Anderson, here they have unfortunately 
been quite unsuccessful.
47
 It seems that legal theorists’ disinterest 
in the context of discovery and decision-making comes from the 
traditional notion that there is no place in law for irrationality and 
intuition and that, if we must admit that such actually exists in law, 
it should be minimised as much as possible in the process of deci-
sion-making, which is left to being studied by psychologists while 
more law-oriented lawyers should deal with the process of justifi-
45 
See E. Feteris, Fundamentals of Legal Argumentation, Kluwer Academic Publishers, Dordrecht 
(1999), p. 10.
46 
Id., p. 10.
47 
B. Anderson, Context of Discovery, Context of Decision and Context of Justification in the Law, op. 
cit., ibid.

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DIGNITAS n Legal Argumentation and the Challenges of Modern Europe
cation as the core of rationality in decision-making. Here it seems 
that legal theorists neglect the emphasis made by the American 
Legal Realists pointing out that hunches and intuition can play a 
positive and even an important role in law, not necessarily a da-
maging one.
I also do not agree with a rigid separation of the two contexts 
but support a more moderate separation between them. I realise 
that in this perspective the outcome of my position is similar to 
that of Bruce Anderson. He opposes the rigid distinction between 
the context of discovery and the context of justification by clai-
ming that “his analysis of the context of discovery supports the 
claim that whether or not a legal decision is justified depends on 
whether the judge performed at his or her informed best – that 
the judge paid attention of the relevant data, intelligently grasped 
links among the data, made reasonable judgments grounded on 
sufficient evidence, made responsible value judgments, and rea-
ched a decision consistent with his or her value judgment about 
what is the most suitable solution to the legal problem.”
48
However, my arguments for supporting the mild version of the 
separation between the contexts of discovery and justification of 
legal decisions are different to Anderson’s in that they are mainly 
embedded in psychological typology. Thus, in the continuation I 
will try to emphasise the importance of the context of discovery 
and decision-making, thereby focusing on judicial decision-ma-
king, by understanding the “operation” of psychological typology 
in this context. I argue that the context of discovery, in addition 
to rational elements, also includes important irrational elements 
of the human (judges’) mind, and that such irrational elements 
do not only play a coincidental or even damaging role in judicial 
decision-making but can even be very crucial for good (even just 
or ethical) decision-making. Nevertheless, I insist that judicial de-
cisions should not only be based on irrational elements since in 
such an event no supervision over judges’ activity, such as exami-
ning their reasoning, would be possible. Therefore, the context of 
discovery (decision-making) must be connected with the context 
of justification (reasoning of the decision) by way of providing 
a translation of irrational elements into rational ones, i.e. in the 
manner of providing reasons for the decision in the reasoning 
48 
Ibid.

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DIGNITAS n The (Ir)rationality of Judicial Decision-Making: the Typological Argument 
against a Rigid Separation between the Context of Discovery and the Context of ...
which serves as a kind of rational experiment for the one who has 
made the decision.
4. Concerning the Process of Discovery and the 
Role of Irrationality in Judicial Decision-Making
4.1.  Understanding Judicial Decision-Making through 
Psychological Typology
Although categorising people according to certain psychologi-
cal types has an ancient origin, the most famous modern approach 
to psychological typology comes from Carl G. Jung.
49
 According 
to Jung, the human psyche is divided into two different basic atti-
tudes: (a) extraversion; and (b) introversion. These two attitudes 
determine from where a person obtains energy. While the extra-
vert obtains it from the outside by dealing with external objects, 
activities, excitements, people and things, the introvert obtains it 
from the inside by reflecting about ideas, thoughts, interests, ide-
as and imagination. In addition to the two attitudes, what is typi-
cal of the human psyche are four basic cognitive functions: (i) 
thinking and feeling as rational functions, which are responsible 
for our evaluation; and (iii) sensation and intuition, which as irra-
tional cognitive functions are the basis of our perception or the 
manner of taking in data. Our thinking analyses information in a 
detached, objective fashion. It operates from factual principles, 
deduces and forms conclusions systematically. It is our logical 
nature. Feeling forms conclusions in an attached and somewhat 
global manner, based on likes or dislikes, the impact on others, 
and human and aesthetic values. It is our subjective nature. Sen-
sing notices the sights, sounds, smells and all the sensory details 
of the present. It categorises, organises, records and stores the 
specifics from the here and now. It is reality-based, dealing with 
“what is”. It also provides the specific details of memory and re-
collections from past events. Intuition seeks to understand, inter-
pret and form overall patterns of all the information that is collec-
ted and records these patterns and relationships. It speculates on 
possibilities, including looking into and forecasting the future. It 
is imaginative and conceptual.
50
49 
See C. G. Jung, Psychological Types, op. cit., ibid.
50 
See, e.g., R. Reinhold, http://www.personalitypathways.com/type_inventory.html (5. 1. 2010).

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DIGNITAS n Legal Argumentation and the Challenges of Modern Europe
In every person, one of these functions is superior or domi-
nant, and one inferior. There is also an auxiliary function and a 
tertiary function, which have some influence on the dominant co-
gnitive function. In accordance with that, Jung developed eight 
different types. His thought was further developed by the Ameri-
cans Katharine Briggs and Isabel Briggs-Myers who added to the 
four Jungian cognitive functions another pair of opposites, jud-
ging and perceiving, which as two additional cognitive functions 
define the way we relate to the external world or determine the 
type of our lifestyle.
51
Why is the abovementioned short description of psychological 
typology relevant to this article? It is important to demonstrate 
that every person is (ir)rational due to his or her basic cognitive 
functions. This certainly applies to the lawyer and their decision-
making, as well as to the judge’s deciding. However, the fact that in 
the lawyer’s personality the rational part (i.e. thinking and judging 
as ideal psychological type preferences) prevails or should prevail 
certainly importantly contributes to the role that law has had thro-
ughout history in society, in which it has ensured at least a certa-
in degree of the rationalisation of ever dynamic social relations. 
From that it follows that the lawyer’s cognitive functions are both 
rational and irrational but the rational elements should predomi-
nate. This applies even more to the judge who, in my opinion, is 
the central figure in the legal profession.
Likewise, the process of discovery, as the initial part of the legal 
decision-making process according to legal argumentation theo-
ry, not only includes rational, i.e. evaluative, elements but also ir-
rational elements since the judge’s rationality (i.e. thinking as the 
predominant cognitive function in legal decision-making) needs 
certain data or material to begin its evaluation, which receives it 
through the operation of irrational sensation (i.e. the perception 
of facts and existing laws) and intuition (i.e. the recognition of the 
“right” legal norm that is based on certain facts, and the so-called 
“sense”
52
 of justice).
As already indicated, intuition plays an important role in legal 
(or judicial) decision-making. First, it appears in the form of instru-
51 
See I. Briggs Myers, P. Myers, op. cit., ibid. 
52 
I suggest that even in English we cease using the syntax “sense of justice” or “feeling of justice” but 
begin using the expression “intuition of justice,” which is the only right expression according to the 
understanding of psychological typology by Jung, Briggs and Myers.

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DIGNITAS n The (Ir)rationality of Judicial Decision-Making: the Typological Argument 
against a Rigid Separation between the Context of Discovery and the Context of ...
mental intuition, by virtue of helping the judge find or recognise 
the most appropriate legal standard (be it a legal rule or principle) 
in the legal system to be applied to certain facts of the case. In 
such an event, this instrumental intuition (“instrumental” hunch) 
is subject to the so-called internal justification of a decision, as 
the necessary rational experiment that is necessary for justifying 
the decision in clear cases. By “internal justification” I understand 
what MacCormick determined as the first-level or “deductive” ju-
stification in which the decision is defended by means of a legal 
rule and the facts of the case.
53
Secondly, in the context of their decision-making judges often 
resort to so-called creative intuition, which is more creative than 
instrumental intuition as to some extent it exceeds the internal le-
gal system in the event of gaps in the law, ambiguities, vagueness 
of legal text, implied meanings in it, which are all typical of un-
clear cases. In such an event, assisted with creative intuition that 
communicates the necessary information to the judge, he or she 
must necessarily step from the area of the internal legal system into 
the realm of the so-called external area of the legal system, whose 
outer boundaries are the requirements of justice, ethics, morality, 
legitimacy, (legal) certainty, predictability etc. In this case the de-
cision is justified externally. Here I refer to what MacCormick un-
derstood by his second-order justification in which the arguments 
that are required are to defend the decision by demonstrating that 
the ruling is in accordance with the prevailing legal order (inclu-
ding in particular legal principles, and arguments from coherence 
and consistency).
54
This entails that such a process often includes intuition – espe-
cially if the case at issue is unclear (or hard), which means that the 
combination consisting of sensation, thinking and instrumental 
intuition is insufficient to provide the decision-maker with the ne-
cessary material for making a conclusion.
However, the phase of justifying a decision is restricted to the 
thinking and empirical processes of providing rational reasons 
for the decision, by way of persuading the legal (and general) au-
53 
N. MacCormick, Legal Reasoning and Legal Theory, Clarendon Press, Oxford (1978). Cf. Alexy’s 
position that internal justification is concerned with whether the decision follows logically from the 
premises adduced as justifying it. R. Alexy, op. cit., ibid.
54 
N. MacCormick, Legal Reasoning and Legal Theory, op. cit., ibid. Cf. Alexy’s perception of external 
justification by which he understands the defending of the acceptability of the premises by interpre-
tative methods and arguments. R. Alexy, op. cit., ibid.

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DIGNITAS n Legal Argumentation and the Challenges of Modern Europe
dience that the decision-maker has decided reasonably. In such a 
case, the decision that was reached internally is reviewable exter-
nally. Thus, the elements of thinking as rational standards (argu-
ments as reasons; as well as the elements of sensation making 
the experience of such reasons possible) play an important role 
as codes that are decisive for the external mediating and com-
municating function of law to be ensured. This phase of decisi-
on-making as the phase of reasoning is crucially conditioned by 
the use of rational codes. This is necessarily so as, unlike reason 
and rationality, intuition as an irrational cognitive function is in-
capable of being a mediator, common denominator, or common 
ground on which people can rely when social disputes are to be 
resolved.
Accordingly, it seems more than probable that the phases of 
discovery and justification are to some extent connected, as when 
one decides in a certain manner they simultaneously intuitively 
anticipate the justification of their selection of a decision. Ne-
vertheless, it may occur when beginning to write down the rea-
sons for a decision that a judge changes their mind, alters their 
decision, or selects other reasons than those that they anticipa-
ted in the initial reaching of the decision. Therefore, it would be 
very hard to defend the thesis that the process of discovery and 
the process of justifying a decision can be rigidly separated. This 
does not say, however, that certain intuitions, senses, perceptions 
or hunches concerning a legal decision must not be rationally ju-
stified or submitted to a rational “test”.
Even though, as Frank alleged, in the process of decision-ma-
king the judge’s personal (psychological) characteristics play an 
important role, the decision of the same judge must be reasoned 
or rationally justified. If this is impossible, they must reach another 
decision that can be justified (rationally).
If the process of justification is more formal and rational, whi-
ch is reflected in the use of relatively autonomous legal canons 
(of positive law or legal texts), to demonstrate that the judge has 
not acted arbitrarily, the process of discovery is more informal 
and material. In such, as already stated above, intuition may play 
a greater role. As briefly mentioned above, the process of reaso-
ning a judicial decision as the process of justifying such pertains 
to the type of thinking that is mainly supported by the senses in: 
(a) perceiving the facts of the case; (b) the norms of the legal text; 

325
DIGNITAS n The (Ir)rationality of Judicial Decision-Making: the Typological Argument 
against a Rigid Separation between the Context of Discovery and the Context of ...
and (c) expressing the reasons for the decision in the reasoning. 
Such thinking mainly operates on the basis of codes of positive 
law or tries to be close to that or match that as much as possible. 
This is the world of more or less formal mechanisms of operati-
ve-analytical rationalism and legal logic, which enables a decision 
to pass the empirical and rationality test, in the context of which 
the judge tries to remain within the relative autonomy of the legal 
world. If the decision cannot pass such a test, then it cannot be a 
legal decision.
4.2.  More on the Role of Intuition in Judicial  
Decision-Making
In order to achieve greater rationality of deciding, the process 
of deciding itself should be more rationally illuminated. In such 
a manner it would be easier to understand which psychological 
factors come into play in deciding. Thus, by also being aware of 
their irrational part, a judge would adjudicate more reasonably, 
impartially and objectively. According to Frank, it is in particular 
the judge who is exposed to emotional dynamism in the court 
since only an honest judge who is also aware of their competen-
cies, but also of their prejudices and deficiencies, can be the best 
guarantee of justice.
55
 Namely, according to the ALR, the proces-
ses of reaching a decision and justifying it includes the following 
steps: (a) learning the facts of the case and reflection on a just so-
lution; (b) a hunch or intuition about the solution; (c) examining 
the possibility of such hunches and intuitions in the framework 
of an existing law (rules, principles and precedents); (d) reaching 
a decision; and (e) providing the necessary reasons for the de-
cision.
56
 Thus, as already indicated we can see that both phases 
(discovery and justification) are mutually related to a significant 
extent.
A Slovenian legal theorist, Boris Furlan,
57
 who lived at the time 
of the American Legal Realists, has similarly emphasised in his tre-
aties on a theory of legal inferring that, in the process of legal de-
cision-making, a practicing lawyer initially derives from his or her 
internal (legal) sense. Namely, similarly to Frank
58
 Furlan argued 
55 
J. Frank, op. cit., p. 138.
56 
Ibid.
57 
B. Furlan, Problem realnosti prava, op. cit., ibid
58 
Given that Furlan began citing Frank in his articles after 1938, this suggests that, at the time of de-

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DIGNITAS n Legal Argumentation and the Challenges of Modern Europe
that, in contradistinction with the predominantly accepted logical 
syllogism, a practicing lawyer in his or her logical inferring does 
not stem from the upper premise of the legal norm but actually 
from the lower premise of the actual case (state of facts). In this 
way, he or she uses intuitive recognition in order to find a com-
mon denominator between the state of facts and the legal norm 
which is to be applied. Such an act of intuition leads him or her 
to the upper premise which is then applied in the form of logi-
cal syllogism. However, according to Furlan, the judge must rati-
onally justify or reason their intuition in the framework of logical 
syllogism since, as we perceive our world in modern times, ratio 
is the most reliable communicator in our external world, which 
ensures predictability and necessary frameworks for accepted so-
cial norms. If the mentioned recognition is an act of intuition, the 
syllogism is an act of reason. So that our intuition becomes acces-
sible to other people we must translate it into the form of reasons 
and rationality. Through logical syllogism alone we cannot find 
appropriate legal norms that would lead to a solution of the case, 
but only prove the correctness of that which we found by means 
of intuition. However, deductive syllogism is the only means of 
rational proving. Finally, legal syllogism has an undisputed role as 
providing supervision over our intuitive findings so that they are 
translated into rational codes.
59
From that we can see that the context of discovery in which, 
besides (rational) evaluation, (irrational) intuition also plays an 
important role, cannot be rigidly separated from the context of ju-
stification as the latter is often only the necessary result and tran-
slation of the former. In the process of deciding itself, when a di-
lemma occurs because we have addressed a hard or unclear case 
(with several possible solutions which could all be plausible or 
when “we run out of rules”), we usually pay attention to intuition 
to provide our thinking with an additional guide for resolving the 
case. Such intuition could lead to a legal rule, (unwritten) princi-
ple, (legal) value, policy, some other standard, helping us to find 
the legal solution in a thinking “obstacle”. However, as mentioned 
above, such a decision that is supported by intuition still has to 
undergo the (empirical) rationality test, which entails that it is to 
veloping this theory of inferring, Furlan did not copy Frank’s thought and simply managed to catch 
the spirit of the age that was then permeating Western legal thought.
59 
Ibid.

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DIGNITAS n The (Ir)rationality of Judicial Decision-Making: the Typological Argument 
against a Rigid Separation between the Context of Discovery and the Context of ...
be rationally and empirically justified in the legal reasoning of the 
decision.
Undoubtedly the role of (not strictly legal) psychological fac-
tors in the work of legislators or those who decide on the appli-
cation of law (especially judges) is usually proportionate to the 
openness of legal standards that are the criteria for reaching the 
decision, as well as to the possibility of broadness of interpretati-
on since such “open-texture” legal provisions can be reasoned in 
several ways, all of which can be rationally defensible.
Conclusion
In the process of legal decision-making, more narrowly in its 
process of discovery, it seems that the mentioned two kinds of 
intuition take place.
First, in deciding clear
60
 cases so-called “instrumental intuition” 
seems to play an important role. In such an event, the judge stems 
from the given facts of a case (i.e. from the lower syllogistic premi-
se) and uses their intuition (so-called “legal intuition”) in order to 
find an appropriate legal norm under which the facts of the case 
will subsequently be subsumed. If the case is truly clear (e.g. when 
the facts of the case are well known and the legal norm substanti-
ally understandable and determinate, and quite easily found) the 
judge’s intuition is instrumental since it operates as a means, an 
instrument or “short-cut” to find the relevant legal norm within 
the relatively explicit legal rules of the (internal) legal system.
61
 
Within such a decision-making process the judge’s initial intuition 
(also “hunch”), which is irrational per se, is rationally evaluated in 
their mind before it is expressed as a decision, and subsequently 
also rationally justified in the form of reasons that are provided in 
the reasoning of the decision.
Second, in the event of an unclear case, the entire process is 
carried out at the beginning as was mentioned above: (1) the em-
pirical perception (through the judge’s senses) of the facts of the 
case; (2) rational evaluation in the manner of thinking what to do; 
(3) an intuition (or hunch) as to which legal norm is a possible 
60 
Here I refer to MacCormick’s determination of a clear case instead of an easy case as he argued 
that in a complex society there are no easy cases. See N. MacCormick, Rhetoric and the Rule of Law, 
op. cit., ibid.
61 
Such a clear case would, e.g., be when a thief is caught in flagranti, when stealing a coat from a 
supermarket given that his or her criminal intention was clearly established.

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DIGNITAS n Legal Argumentation and the Challenges of Modern Europe
solution; (3) a rational evaluation as to whether such a legal solu-
tion is indeed possible given the facts of the case; (4) the internal 
decision made; and (5) the decision expressed and reasons for 
such provided in the reasoning.
However, if there is no clear upper premise of the legal norm 
the role of the judge and their intuition must necessarily be more 
creative. His or her intuition creatively extends beyond the expli-
cit boundary of the legal text into the area of the implicit text
62
 of 
the unclear legal provision, which still must remain within the le-
gal system for otherwise it cannot be a legal decision. An example 
of such creative intuition is the implicit text of the American Con-
stitution that was discovered in the case of Griswold v. Connecti-
cut concerning the right to privacy.
63
 The problem then is how to 
justify, rationally, such judicial creativity. It seems that the internal 
criteria of justification cannot be applied so we have to make use 
of the external criteria of justification,
64
 the role of which is to help 
us establish a necessary connection between the solution and the 
legal system. Such creative intuition as a form of judges’ irrationa-
lity is positive as long as it discovers hidden parts, develops unde-
veloped parts, or upholds or supports parts of the existing legal 
system. Such creative intuition must still remain within the legal 
system.
Finally, it follows from the argument from psychological typo-
logy presented above that the context of discovery and the con-
text of justification of legal decisions cannot be rigidly separated 
since every person’s decision-making necessarily includes irratio-
nal elements which importantly influence his or her rational eva-
luation. Nevertheless, in order for such irrationality of the judge 
(via intuition) to pass the test of the legal system, and therefore 
be considered as positive, it must be in the service of the internal 
and external criteria of the justification of judicial decisions, and 
thereby in the service of the rationality of law. If it departs from 
being in the service thereof it may be considered as dangerous 
irrationality.
62 
Concerning the meaning of implicit text see, e.g., A. Barak, Purposive Interpretation in Law, Prince-
ton University Press (2005), pp. 104-106.
63 
It is well known that in this case the US Supreme Court found the previously not explicitly existing 
right to privacy in the US Constitution in the implicit text of the Constitution by virtue of discovering 
penumbras of certain other explicitly mentioned rights. 
64 
On the internal and external criteria of the justification of legal decisions, see supra notes 52 and 
53.