Judicial Reasoning from the Perspective of Behavioural Law and Economics

Abstract

The aim of the paper is to scrutinize the prospects of development of a descriptive model of adjudication under the assumptions of bounded rationality. The model is supposed to include the achievements of contemporary cognitive psychology, cognitive sciences and behavioural law and economics. The growth of judicial activism and the empowerment of courts demonstrates a clear need for revision of present current models of adjudication. The fact that judges are many times are forced to perform they tasks under a veil of ignorance and are equally exposed to affects, heuristics, biases and manipulations gives sufficient ground for review of the dominant concept of judicial rationality and impartiality. I urge us to analyse the judicial rationality from the perspective of dual process theory so as to encapsulate heuristics and biases with the wider model of adjudication. The proposed interdisciplinary approach may contribute to the introduction of the institutional and procedural changes that would take into consideration the complex nature of the cognitive processes as well as their limits in the context of the law application of law.