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4 - Law, Folk Psychology and Cognitive Science

from I - Metatheory and Methodology

Published online by Cambridge University Press:  21 April 2021

By
Łukasz Kurek
Edited by
Bartosz Brożek ,
Jaap Hage  and
Nicole Vincent
Bartosz Brożek
Affiliation:
Jagiellonian University, Krakow
Jaap Hage
Affiliation:
Universiteit Maastricht, Netherlands
Nicole Vincent
Affiliation:
Macquarie University, Sydney
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Summary

Folk psychology (henceforth FP) is the common-sense understanding of the mind. The idea behind this chapter is that the legal understanding of the human mind – that is, how the human mind is conceptualized within, for example, criminal law, tort law, contract law or jurisprudence – has its roots in FP. One of the goals of the chapter is to determine in more detail how the mind, and its relationship with behaviour, are conceptualized within law.

Numerous contemporary philosophers and cognitive scientists are interested in FP. Various claims – both of an empirical and philosophical nature – have been made as to what the features of FP are. Considerable disagreement remains in connection to even its most basic features. Much of this chapter pertains to issues which have emerged at the intersection between FP and cognitive science as they are directly relevant to the discussion about the folk-psychological underpinnings of law. An example of such a feature, and one which will often resurface in this chapter, is whether FP makes any commitments as to how the mind really works. If FP makes such claims and they turn out to be false, this could be used as an argument against the usefulness of FP. In a way, it would be surprising if the empirical commitments of FP – if there are any – did not, at least to some extent, turn out to be false. Science has already revealed how our common sense gets things wrong in the context of our everyday understanding of the physical world. Some think, however, that FP should not be viewed as making empirical commitments.

The chapter tackles issues pertaining to folk psychology which are specific to law as well. The considerations carried out in the chapter indicate how the practical nature of law influences the debate about folk psychology, law and cognitive science. Those dubious as to the usefulness of FP for legal purposes should propose how FP could be replaced, for if our legal practices are rooted in FP, these legal practices would be crippled without it and completely replacing it would not be an easy task. Some would even argue that the elimination of FP would be the greatest intellectual tragedy in the history of our species. As we can see, the topic raises some emotions.Finally, the discussion carried out in the chapter covers the three dominant outlooks on the relationship between folk-psychological underpinnings of law and cognitive science: autonomy, revision and integration.

Type
Chapter
Information
Law and Mind
A Survey of Law and the Cognitive Sciences
 , pp. 55 - 85
Publisher: Cambridge University Press
Print publication year: 2021

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