This commentary examines the issue of judicial bias in response to the chapter, The Psychology of the Trial Judge, by Morris Hoffman. With a focus on retributive punishment judgments, it questions whether human decision makers, including judges, can rely on their powers of rationality, or whether such judgments are fundamentally emotional and intuitive. I begin with the observation that we, as a society, do not have a clear conceptual understanding of why we punish criminals. Further, there are good reasons to think that retributive attitudes might be the expression of psychological biases, and this poses problems for the prospect of rational punishment. At the least, a coherent justification for punishment should be informed by an empirical understanding of the causes of these psychological biases, including their evolutionary origins. Evolutionary scholarship suggests that retributive attitudes evolved to generate consequentialist outcomes like deterrence, but they did so to achieve a competitive advantage between individuals, not to protect society as a whole. Such findings suggest that our retributive attitudes today might not always function in ways that are best for society. Thus, understanding why our punishment psychology evolved in the ways that it did, we as a society can more cogently evaluate whether we embrace those reasons or reject them. An appreciation of our evolved psychology of punishment can also provide a framework for unifying the rival legal justifications for punishment. From this perspective, retributive and consequentialist motives for punishment are not completely incompatible. Rather, they are different levels of analysis for describing our universal punishment psychology.

This chapter aims at substantiating three claims: (1) that legal thinking consists in the interaction between three mental mechanisms: intuition (unconscious decision making), imagination (mental simulation), and thinking in language (theory-construction); (2) that legal epistemology has largely neglected the role of imagination in legal thinking, while it is imagination that provides ‘the missing link’ between unconscious decision making and thinking in language; and (3) that the picture of the legal mind which embraces intuition, imagination and language provides an explanation of the enduring and seemingly inconsistent threads in legal epistemology. I begin with a general overview of the existing theories in legal epistemology, distinguishing between formalism, dialecticism, coherentism and intuitivism. Along the way, I highlight the fact that these four philosophical stances offer different and sometimes mutually inconsistent perspectives on legal thinking. Subsequently, I analyse the three mechanisms at play in all types of reflection, including legal thinking: intuition, imagination and thinking in language. I try to explain what stands behind these labels, and argue that a lawyer cannot limit themselves to only some of these mechanisms in their cognitive efforts. Moreover, I venture to depict how the mechanisms in question interact in, and what they contribute to, legal decision making. In this context, I put special emphasis on the role of imagination, explaining how it provides a link between intuition and language.

The paper is a commentary to Przemyslaw Palka’s analysis of the multidimensional relation between private law and cognitive science. One particular problem touched upon by Palka is further elaborated: the descriptive layer of the private law and its relation to the cognitive sciences. The emphasis is placed on two interrelated issues: presuppositions of the legal norms and the relationship between legal and scientific “images of man.”

Introduction

In 1908, in Introduction to the Science of Law and Morality Leon Petrażycki noted:

Since 1908, such convictions have been repeated on many occasions. For some (Petrażycki included) the reason for this is that jurisprudence has never been a proper science. They claim that the only way to give a satisfactory explanation of law is to develop a naturalistic conception thereof. In recent years, due to the astonishing advancements in biology (especially, neuroscience), the project of naturalizing law has become again a subject of heated debate.

The problem is very complex and thus, in this short essay, I will confine myself to some preliminary remarks. I will devote considerable attention to two cases studies: Petrażycki's own reductionist project and a recent proposal by Wojciech Załuski. I will try to evaluate them from two perspectives. First, I will look at how they answer the ontological question (‘what is law’), and second, I will consider their answers to the normativity question (‘how do legal norms become reasons for action’).

The present book is the fifth volume of the series Studies in the Philosophy of Law which has appeared since 2001. The previous three volumes had a monographic character, the last one being devoted to the various issues of bioethics, law and philosophy and the previous one to the topic of the economic analysis of law. Both of these were published in English. This volume is part of a research project “Biojurisprudence” pursued from 2007 through 2010 by the Department of Philosophy of Law and Legal Ethics at the Jagiellonian University and sponsored by the Polish Ministry of Science and Higher Education. Within the project our team has published many articles, monographs and edited works such as the Studies in the Philosophy of Law, vol. 4: Legal Philosophy and the Challenges of Biosciences(edited by J. Stelmach, M. Soniewicka and W. Załuski, Jagiellonian University Press, 2010). One monograph, entitled Evolutionary Foundations of Law was written by Dr. Wojciech Załuski and was published in both Polish and English in 2009. We have also prepared a joint monograph entitled Paradoxes of Legal Bioethics and which is forthcoming this year.

The present volume also has a monographic character and consists of two parts and an appendix. The first part, entitled Legal Implications of Medical Advances, consists of four chapters that address the ethical and legal issues of the integration of new genetic technologies into medicine.

Trilemma

When bioethical discussion touches on the notion of the person it usually takes the form of an argument which has a decisive character. Such an understanding often forms a simple syllogism: one should not kill a person; X is a person; therefore: one should not kill X with, in the place of X – according to the problem considered – terms such as nasciturus, ‘someone terminally ill who has requested euthanasia,’ ‘someone who's life functions are maintained by medical apparatus’ are employed.

On the other hand, one may also encounter such positions as that noted by Hugo Engelhardt:

We should note that Engelhardt does not question the syllogistic scheme above. He rejects the validity of one of its premises i.e. that a nasciturus or someone who is mentally handicapped is a person. It is not the aim of this paper to establish if the conclusions of this syllogism are true or false. We can state, however, that they are not justified on the basis of the premises assumed. The reason is not that the premises are false but rather that it is unclear what they state.