Rationality, Legitimacy, & The Law

Washington University Jurisprudence Review

46 Pages Posted: 26 Dec 2009 Last revised: 29 Jan 2014

See all articles by Daniel Epstein

Daniel Epstein

St. Thomas University - School of Law

Date Written: January 27, 2014

Abstract

American legal realism was committed to examining legal reasoning in terms of the actual experiences of judges. Because the realist project sought to use social science tools to examine human nature, the contemporary rise of cognitive neuroscience provides an occasion for re-examining legal realism’s foundational critique of the law. Realism’s attempt to examine “the actual facts of judicial behavior” and to pursue a “scientific description and prediction of judicial behavior” appears to be a suitable vehicle for considering the relevance of cognitive neuroscience for legal theory. Cognitive neuroscience has provided convincing evidence for rejecting the traditional bifurcation between “reason” and “emotion”. Moreover, cognitive neuroscience has revealed key heuristic biases in human reasoning. As such, the dominant form of legal reasoning might rely on a flawed conception of rationality. And this flawed understanding may have implications for the legitimacy of judicial decisions. Rule-based reasoning has informed the image of rational adjudication that undergirds our conception of the rule of law. But rule- based reasoning does not appear to be a complete description of how judges decide cases; and, furthermore, the received view of legal rationality does not appear capable of accounting for alternative theories of adjudication.

Keywords: Law, political theory, legal theory, philosophy of mind, philosophy of cognitive science

Suggested Citation

Epstein, Daniel, Rationality, Legitimacy, & The Law (January 27, 2014). Washington University Jurisprudence Review, Available at SSRN: https://ssrn.com/abstract=1527590 or http://dx.doi.org/10.2139/ssrn.1527590

Daniel Epstein (Contact Author)

St. Thomas University - School of Law ( email )

16401 N.W. 37th Ave.
Miami, FL 33054
United States

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