Cognitive enhancement in the judiciary
| Autor | Giovana Figueiredo Peluso Lopes |
| Cargo | PhD candidate in the Law, Science and Technology program at the University of Bologna (Italy) |
| Páginas | 283-315 |
Cognitive enhancement in the judiciary
O aprimoramento da cognição no Judiciário
Giovana Figueiredo Peluso Lopes*
Università di Bologna, Bolonha - Itália
1. Introduction
Empirical research indicates that – like jurors, lawyers, and people in gen-
eral – judges are frequently affected by intuitive processes to make case
decisions. Although this automatic way of thinking can be surprisingly
accurate, it can also lead to severe and systematic errors, especially in the
courtroom. Evidence shows that judicial decisions are also prone to im-
plicit biases, such as ingroup favoring, anchoring, statistical inferences,
hindsight, and racial bias.
Given the high stakes in judicial decision-making not only for the
parties directly affected but for society in general, the question of improv-
ing the quality of those decisions is important. Judicial review, workload
reduction, adequate legal education and training are some of the methods
commonly pointed out to reach that goal.
Judicial decision-making involves multiple tasks, each of which use
various cognitive and emotional processes to different degrees. Albeit there
are a growing number of investigations exploring the possibility of ap-
plying technologies to enhance cognitive function, there is virtually no
research exploring the possibility of using these techniques to enhance
judicial cognition.
Thus, this article aims at advancing such a discussion, by investigat-
ing the ways in which cognitive enhancement could improve the quality
*PhD candidate in the Law, Science and Technology program at the University of Bologna (It-
aly). She holds a master’s degree in Law from the Federal University of Minas Gerais. E-mail:
giovana.figueiredo@unibo.it Orcid: 0000-0003-4798-2542.
Direito, Estado e Sociedade n.59 p. 283 a 315 jul/dez 2021
284
Direito, Estado e Sociedade n. 59 jul/dez 2021
of judicial decisions. It also asks whether there could be a moral duty for
judges to undergo cognitive enhancement under the specific ethical frame-
work of virtue jurisprudence.
The breadth of the theoretical bases on which the proposed research is
based implies, necessarily, its development from an interdisciplinary per-
spective that addresses not only ethical and legal aspects of the problem,
but also aspects relating to cognitive psychology, behavioral law and eco-
nomics (BLE) and neuroscience. Methodologically speaking, the proposed
research is essentially theoretical and bibliographic, drawing on direct and
indirect sources for a comprehensive review of the theme.
The paper will be developed as follows. First, the main theories com-
prising judicial behavior will be briefly analyzed in light of scientific ev-
idence regarding judicial decision-making, in order to bring some clarity
into how judges decide, how they are affected by external influences that
are not relevant to the proceedings, and the heuristics and biases they are
prone to. These insights will reveal what aspects of judicial cognitive pro-
cesses could benefit from enhancement, and focus will be given to evaluat-
ing traditional and technological methods for enhancing cognition.
Then, literature regarding the ethics of human (especially cognitive)
enhancement will be explored in order to analyze the possibility of deriving
some common ground on which to build an ethical framework for judicial
enhancement. Finally, the problem of whether there could be a moral duty
for judges to cognitively enhance themselves will be approached through
the lens of virtue ethics and virtue jurisprudence. The main findings and
results of the research will be synthesized in the conclusion.
2. Judicial decision-making and implicit biases
The study of judicial behavior constitutes the study of the reasons behind
judge’s decisions, how to predict them and how to explain them1. In other
words, it encompasses the question of how do judges judge. This field
has deeply mutated throughout the 20th century, with arguments mainly
revolving around two venerable (and opposing) models of judging: the
formalist and the realist.
1 MAVEETY, 2003.
Giovana Figueiredo Peluso Lopes
285
Direito, Estado e Sociedade n. 59 jul/dez 2021
Formalists argue that judges decide based on the mechanical interac-
tion between norms within a legal order, in a similar fashion to that of a
rational economic actor. According to them, judges apply the governing
law to the facts of a case in a logical, mechanical, and deliberative way2.
Legal formalism, then, is descriptive theory of adjudication, according to
which the law is rationally determinate, and judging is mechanical. It thus
follows that legal reasoning is autonomous, since the class of legal reasons
suffices to justify a unique outcome, with no recourse to non-legal reasons
being required3.
On the other hand, legal realism posits that judges follow an intui-
tive process to reach conclusions – which only later are rationalized with
deliberative reasoning4. For the realists, judges decide intuitively, using
deliberative faculties afterwards to rationalize that intuition not only to
themselves but also to the rest of society5. In short, legal realism challenges
the idea of classical rationality by arguing that judges must be viewed as
individuals with their own psychological quirks, which directly influence
the outcome of their decisions.
Neither model of legal judging has proved satisfactory. Even though
judges frequently rely on intuition, they do not decide based solely on it,
but rather apply legal rules to facts. Considering this, contemporary schol-
ars of judicial behavior have put the limits of judicial cognition to test over
the last decades, borrowing concepts and tools from the field of cognitive
psychology.
In this context, Guthrie et al.6 have proposed the “intuitive-override”
model of judging, which posits that judges generally make intuitive deci-
sions but sometimes override their intuition with deliberation. The authors
describe it as a less idealistic model than the formal, but also less cynical
than the realist, blending into a “realistic formalism”. Their model is realis-
tic in as much as it recognizes the important role of judicial intuition, and
formalist in the sense that it recognizes the importance of deliberation in
constraining the influence of the said intuition.
2 NEUBORNE, 1992.
3 LEITER, 1999.
4 HUTCHESON, 1929.
5 GUTHRIE et al., 2007.
6 GUTHRIE et al., 2007, p. 130.
A desconstrução da condição humana nos escritos de Bartomolé de Las Casas
Para continuar a ler
PEÇA SUA AVALIAÇÃO