Working Papers

Abstract

Scientists have long recognized two distinct forms of human thought. “Type 1” reasoning is unconscious, intuitive, and specializes in finding complex patterns. It is typically associated with the aesthetic emotion that John Keats called “beauty.” “Type 2” reasoning is conscious, articulable, and deductive. Scholars usually assume that legal reasoning is entirely Type 2. However, critics from Holmes to Posner have protested that unconscious and intuitive judgments are at least comparably important. This article takes the conjecture seriously by asking what science can add to our understanding of how lawyers and judges interpret legal texts.

This is a good time to take stock. Recent advances in cognitive psychology, brain imaging, and neural network theory have already pushed many humanities scholars to rethink postmodern interpretations that privilege politics and culture over texts. This article argues that a parallel shift is overdue in law and that Type 1 reasoning, which specializes in pattern recognition, provides a natural explanation for how judges choose among competing legal theories. Finally, and most surprisingly, the article documents cognitive psychology evidence showing that Type 1 judgments show significant universality, i.e. that humans who study subjects for long periods often make similar choices without regard to the societies they were born into. This solves a long-standing difficulty in jurisprudence, which often struggles to explain why one legal interpretation should be more convincing than another. 

The rest of the article analyzes how Type 1 thinking enters into legal reasoning and outcomes. It begins by reviewing 19th Century theories that claimed a leading role for intuitive reasoning in public policy. It then updates these theories to accommodate the relatively weak statistical correlations that psychologists have documented, arguing that modern court systems amplify these signals in approximately determinate ways. It also explains why advocates should rationally prefer formalist judges to pragmatic ones. Crucially, the existence of universality implies a measure of agreement across all lawyers regardless of personal bias or politics. This common ground gives judges a reliably neutral basis for deciding cases.
 

Download File

Full paper here. (417KB)