Dr Kylie Burns - Judicial Use of ‘Common Sense’ and Judicial Cognition: Nudging Judging? - 30 June

Judges are like other human beings. They use their common sense, their ‘common understanding’, their ‘contemporary knowledge’ of society and the ‘expectations of the community’, as part of their decision-making. The role of ‘common sense’ and ‘common understanding’ in judicial reasoning is well recognised. Many legal principles require judicial application of these forms of knowledge- the reasonable man (person?) in tort law; the extent of self- control of the ordinary ‘person’ when provoked in criminal law; the evaluation of the credit-worthiness of a witness late to complain of sexual abuse; the meaning of ‘sex’ in birth registration legislation; the ‘best interest’ of the child in family law. However, like the rest of us, judges are human decision-makers unconsciously impacted by cognitive limitations. Their factual assumptions may be influenced by their own cultural worldviews. Judicial use of ‘common sense’ can be the vehicle through which error, and discrimination enters the law. This paper examines how judges use ‘common sense’ in their judicial reasoning, how judging might be seen as a cognitive process with the consequent potential impact of heuristics, biases and cognitive illusions on judicial construction of ‘common sense’, and discusses whether judges can be ‘nudged’ to overcome the limitations of ‘common sense’ reasoning. The paper argues that while ‘common sense’ and ‘common understandings’ will always be an inevitable part of judicial decision-making (as they are for human decision-making), more attention is required to overcome the limitations of ‘common sense’ judging.