Abstract
ABSTRACTThis paper explores a novel type of argument in legal theory—a psychological debunking argument—by the example of the justification of human rights and based on a psychological dual-process model of decision-making. Debunking arguments undermine confidence in a belief because of shortcomings of the empirical conditions under which it was formed. They thereby open a route from the descriptive to the evaluative, from Is to Ought, without illicitly crossing metaethical waters since they involve normative premises. As they are epistemic, they cannot replace substantive arguments on the merits. However, they may be useful when substantive arguments are stalled or the necessity to make a judgment precludes further discussions.The controversial justification of human rights is a good test case for debunking arguments. The challenge is to find features in the formation of beliefs about human rights that undermine their epistemic justification. Some psychologists claim that relevant beliefs arise from the rationalization of intuitions. This process is ill-suited to generate correct beliefs; so formed beliefs may be debunked. This also shows how legal reasoning might be improved.
Highlights
This paper explores the possibility of a novel type of argument in legal theory—a psychological debunking argument—by the example of the justification of human rights, and on the basis of a recent psychological model of moral decision-making
This paper explores whether the way a decision-maker such as a judge reasons about the justification of a specific human right has something interesting to say about the correctness of the results of this reasoning, or more precisely, about whether the reasoner is justified in believing in their correctness.[2]
The argument might be summed up like this:: Arguments in favor of rights are rationalizations of intuitions [empirical premise].: Rationalizing intuitions is a defective process for reaching correct beliefs [normative premise 1].: Beliefs resulting from defective processes should be discarded [normative premise 2]. Beliefs resulting from arguments in favor of rights result from defective processes and should be discarded
Summary
This paper explores the possibility of a novel type of argument in legal theory—a psychological debunking argument—by the example of the justification of human rights, and on the basis of a recent psychological model of moral decision-making. The following reconsiders Greene’s argument in a charitable interdisciplinary spirit His noteworthy views about the psychology of rights shall be reconstructed as they may well be of interest to legal scholars beyond the purposes of this paper. A novel argument geared toward the law and beliefs in human rights in particular shall be developed on the basis of his psychological model It suggests that some forms of reasoning about rights can be defective, so that conclusions and beliefs generated by them are undermined. The second section presents Greene’s argument against rights, primarily its empirical premises and presuppositions about intuitive and rationalizing reasoning This provides the basis for developing a legal debunking argument in the third section. While it is hard to ascertain whether any human right will be debunked, the normative perspective on the psychology of legal reasoning can certainly be used to make legal thinking better
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