For the law, cognitive sciences should not change everything, but still a lot
My message is, however, that next to the main lines of law’s contents, law students should learn about the ways in which law affects society and its participants. In this connection, they should study selected topics from sociology, but also – and that is the main message here – the cognitive sciences in a broad sense.
Over the course of more than twenty centuries, law has become an impressive aggregate of rules, principles, rights, institutions and social practices. There are good reasons why the study of law became one of the first and most important academic disciplines. Not the least of these reasons is that law makes it possible for humans to live together without too many conflicts, or even wars. Law is one of mankind’s most important achievements.
It has become time to seriously reconsider law and legal education
Despite - or perhaps even because of - these important functions of law and its study, it has become time to seriously reconsider law and legal education. Law is a tool to guide human behaviour by means of rules and their enforcement. Whether it fulfils its function efficaciously and without too many costs, depends to a large extent on human nature. Much of the law and its use are based on a theory of that nature, which is often implicit. This theory is sometimes called ‘folk psychology’, because it consists largely in the way laymen look at human psychology. This foundation manifests itself in the assumptions that human beings are rational agents, capable of making free choices that cause their behaviour, and for which they are then responsible.
Because it is most often implicit, folk psychology is seldom questioned – but there are exceptions. There is a long-standing tradition of philosophical and, in more recent times, psychological and sociological theory-formation about the causes and explanations of human behaviour. In this connection, one might think of the work of Aristotle, Marx, Freud and Maslow. Law has taken some of these insights into account, but the influence of scientific insights on the content of law has remained small in comparison to the influence of folk psychology. One reason is that for a long time, the sciences did not have much to say about the human mind and about the causes of human behaviour.
Over the last decades, a flood of discoveries on the human mind and on the causes of human behaviour has become available
However, that is changing rapidly. Over the last decades, a flood of discoveries on the human mind and on the causes of human behaviour has become available, and there is good reason to assume that this flood will only surge in the years to come. While this means that our knowledge of the human mind and of the causes of human behaviour is in flux and that our current knowledge is likely to be superseded soon, one thing will most likely remain constant: the traditional folk-psychological image of mankind is outdated and often wrong. There is psychological evidence that human decision-making is often irrational (biased), and that the conscious will - whatever that may be - has less influence on human behaviour than the law seems to assume, and in some cases perhaps no influence at all. If law is to function optimally in guiding human behaviour, it should take these insights into account.
The role of modern findings
Nevertheless, the recent cognitive-scientific findings do not necessarily imply that the law is wrong. Even if the law is often based on an outdated image of mankind, legal rules may still be useful. Suppose, for example, that people are never accountable for their behaviour in a psychological/neurological sense. Even then, it may still make sense to hold them legally accountable, not because they deserve punishment or civil liability, but for preventive purposes. However, even where the law can remain as it is, its underpinnings in human nature need to be reconsidered. In that connection, modern findings from moral, social and cognitive psychology, neurology, (evolutionary) biology, and artificial intelligence, and most likely still other sciences, should play an important role.
These sciences should not only influence the content and underpinnings of law, but also legal education. For many centuries, the study of law has consisted mainly of studying and interpreting authoritative texts, such as cases, statutes, and international conventions. If law is merely seen as a set of rules, this approach to the study of law may still be justified. However, if law is seen as a tool to guide human behaviour by means of rules and their enforcement, the study of law should pay ample attention to the causes of human behaviour. These causes cannot be found in the authoritative texts that are traditionally seen as the sources of law. A law study that is mainly devoted to the study and interpretation of legal sources is then inadequate and in need of an update.
My message is not that legal education should no longer pay attention to the content of law in terms of its rules and legal principles. Of course lawyers should know the contents of the law, at least in broad strokes. However, there are too many details and these details change too often, to make the detailed study of legal rules a sensible enterprise. Still, lawyers need to understand the main lines of a legal system to find the details that are necessary to deal with concrete cases, and to give these details their proper place in the complex system that is modern law.
My message is, however, that next to the main lines of law’s contents, law students should learn about the ways in which law affects society and its participants. In this connection, they should study selected topics from sociology, but also – and that is the main message here – the cognitive sciences in a broad sense. There should be courses on behavioural - next to traditional - economics, about moral, social and cognitive psychology, about (evolutionary) biology, and about the relevant aspects of artificial intelligence and philosophy.
These ‘auxiliary sciences’ actually belong to the core disciplines of a scientific study of law, and they deserve a substantial place in the curriculum of any law school with scientific aspirations. If this means that there will be less time for studying rules, that is a necessary investment to ensure that the academic study of law is scientific and not (only) vocational.
With thanks to Antonia Waltermann for suggesting improvements.
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