Incompetent, prejudiced and lawless? A Gestalt-psychological perspective on fact finding in law as learning

Abstract

1. Biased about ‘bias’? At least for a given unproblematic understanding of bias, lawyers from different legal cultures, and indeed lawyers and scientists, will easily agree that ‘biased’ inferences are detrimental to the truth. The judge who convicts despite his better knowledge because he has something to gain from the conviction displays the same kind of undesirable behaviour as the scientist who falsifies test results because his sponsors pay him to do so. In both cases, we condemn their behaviour in part because it is detrimental to the truth. Both the legal traditions discussed in this paper, common law and European continental law, have explicit rules prohibiting this sort of behaviour. 1 However, this consensus disappears once the question becomes one of which institutional set-ups are most apt to prevent more subtle and subconscious forms of prejudice and bias. Continental legal systems for instance view the transmission of written information to the judge prior to the principal proceedings as an important means of ensuring judicial impartiality. Away from the parties and free from the temptation to be swayed by their personal charm, a distanced, neutral and objective assessment of the situation becomes possible. Physical distance results in cognitive