Humans have this extraordinary cognitive ability: They imagine inexistent objects, they treat them as if they were real, and by doing so they make them real. They thus give rise to a shared institutional reality that enables them to cooperate in ways that would be impossible otherwise. In this paper, we would like to revisit the account that HLA Hart gives of the practice of collective acceptance that makes a legal system possible. We try to provide an explanation of what (...) Hart calls the ‘internal point of view’, on the basis of experiments on institutional concepts, drawing on the paradigm known as ‘embodied cognition’. Experts and non-experts in law rated the role of several cognitive dimensions for a list of words referring to two kinds of abstract concepts (institutional and theoretical/scientific) and two kinds of concrete ones (food and artifact). Institutional concepts were distinguished into pure-institutional (e.g., ‘contract’, ‘state’, ‘property’) and meta-institutional (e.g., ‘norm’, ‘duty’, ‘justice’). The results provide an empirical account of how our way of thinking about institutions changes as we acquire expertise in the legal field, thus shading light on the cognitive underpinnings of the ‘internal point of view’. (shrink)

The experimental philosophy of law is a recent movement that aims to inform traditional debates in jurisprudence by conducting empirical research. This paper introduces and provides a systematic overview of the main lines of research in this field. It also covers the most important debates in the literature regarding the implications of these findings for the philosophy and theory of law. It argues that three challenges arise when addressing (old) legal-philosophical questions in (new) experimental ways by drawing normative implications from (...) empirical data: such implications are value-driven, depend on explanations of empirical findings and vary across legal systems. (shrink)

In a series of ten preregistered experiments (N=2043), we investigate the effect of outcome valence on judgments of probability, negligence, and culpability – a phenomenon sometimes labelled moral (and legal) luck. We found that harmful outcomes, when contrasted with neutral outcomes, lead to increased perceived probability of harm ex post, and consequently to increased attribution of negligence and culpability. Rather than simply postulating a hindsight bias (as is common), we employ a variety of empirical means to demonstrate that the outcome-driven (...) asymmetry across perceived probabilities constitutes a systematic cognitive distortion. We then explore three distinct strategies to alleviate the hindsight bias and its downstream effects on mens rea and culpability ascriptions. Not all are successful, but at least some prove promising. They should, we argue, be taken into consideration in criminal jurisprudence, where distortions due to the hindsight bias are likely considerable and deeply disconcerting. (shrink)

The reasonable person standard is key to both Criminal Law and Torts. What does and does not count as reasonable behavior and decision-making is frequently deter- mined by lay jurors. Hence, laypeople’s understanding of the term must be considered, especially whether they use it predominately in an evaluative fashion. In this corpus study based on supervised machine learning models, we investigate whether laypeople use the expression ‘reasonable’ mainly as a descriptive, an evaluative, or merely a value-associated term. We find that (...) ‘reasonable’ is predicted to be an evaluative term in the majority of cases. This supports prescriptive accounts, and challenges descriptive and hybrid accounts of the term—at least given the way we operationalize the latter. Interestingly, other expressions often used interchangeably in jury instructions (e.g. ‘careful,’ ‘ordinary,’ ‘prudent,’ etc), however, are predicted to be descriptive. This indicates a discrepancy between the intended use of the term ‘reasonable’ and the understanding lay jurors might bring into the court room. (shrink)