Dual-Process Cognition and Legal Reasoning
ARGUMENTATION 2011: INTERNATIONAL CONFERENCE ON ALTERNATIVE METHODS OF ARGUMENTATION IN LAW, pp. 1-32, Michał Araszkiewicz et al, eds., Masaryk University, Brno, 2011
32 Pages Posted: 14 Feb 2012
Date Written: September 9, 2011
The dual-process framework is a set of theories on human cognition in which cognition is seen as consisting of (at least) two substantially different yet interdependent systems: the older, faster, partly unconscious and automatic System 1 and the newer, slower, fully conscious and considered System 2. When viewing legal reasoning through the dual-process model, we can easily see that System 1 is primarily responsible for deciding a case (or finding the best line of arguments in support of a party) with the help of aligning the particulars of the case with the preexisting framework of statute and case law, whereas System 2 is responsible for generating and evaluating arguments in support of the outcome determined by System 1, thereby opening up an individual’s reasoning process for external critique. System 2 may also override System 1 altogether, but this is only possible in easy cases. In part thanks to the dual-process framework we can take a scientific look into the often discussed but substantially neglected question of Right Answers in law through empirically testable hypotheses. This also has significant implications for artificial intelligence and law. By acknowledging the differences between the two, we can better use the most suitable computational models for each of them individually.
Keywords: legal reasoning, legal decision-making, justification, dual process theory
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