Legal Decision-Making and the Abstract/Concrete Paradox

Cognition International Journal of Cognitive Science, Forthcoming

34 Pages Posted: 7 Oct 2020

See all articles by Noel Struchiner

Noel Struchiner

PUC-Rio

Guilherme Almeida

Getulio Vargas Foundation (FGV) - FGV Law School Rio de Janeiro; Pontifical Catholic University of Rio de Janeiro (PUC-Rio) - Law

Ivar Hannikainen

University of Sheffield - Department of Philosophy; Pontifical Catholic University of Rio de Janeiro (PUC-Rio)

Date Written: August 19, 2020

Abstract

Higher courts sometimes assess the constitutionality of law by working through a concrete case, other times by reasoning about the underlying question in a more abstract way. Prior research has found that the degree of concreteness or abstraction with which an issue is formulated can influence people’s prescriptive views: For instance, people often endorse punishment for concrete misdeeds that they would oppose if the circumstances were described abstractly. We sought to understand whether the so-called ‘abstract/concrete paradox’ also jeopardizes the consistency of judicial reasoning. In a series of experiments, both lay and professional judges sometimes reached opposite conclusions when reasoning about concrete cases versus the underlying issues formulated in abstract terms. This effect emerged whether participants reasoned with broad principles, such as human dignity, or narrow rules, and was largest among individuals high in trait empathy. Finally, to understand whether people reflectively endorse the discrepancy between abstract and concrete resolutions, we examined their reactions when evaluating both, either simultaneously or sequentially. These approaches revealed no single pattern across lay and expert populations, or exploratory and confirmatory studies. Taken together, our studies suggest that empathic concern plays a greater role in guiding the judicial resolution of concrete cases than in illuminating judges’ professed standards — which may result in concrete decisions in violation of their own abstract principles.

Keywords: abstract/concrete paradox, identifiable victim effect, judicial decision-making, experimental jurisprudence, joint evaluation, rules, principles

Suggested Citation

Struchiner, Noel and Almeida, Guilherme and Hannikainen, Ivar, Legal Decision-Making and the Abstract/Concrete Paradox (August 19, 2020). Cognition International Journal of Cognitive Science, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3677185 or http://dx.doi.org/10.2139/ssrn.3677185

Guilherme Almeida

Getulio Vargas Foundation (FGV) - FGV Law School Rio de Janeiro

Brazil

Pontifical Catholic University of Rio de Janeiro (PUC-Rio) - Law ( email )

Rua Marquês de São Vicente
225
Rio de Janeiro, RI Rio de Janeiro 22451900
Brazil

Ivar Hannikainen

University of Sheffield - Department of Philosophy ( email )

Arts Tower
Western Bank
Sheffield S10 2TN
United Kingdom

Pontifical Catholic University of Rio de Janeiro (PUC-Rio) ( email )

Rua Marquas de Sao Vicente, 225
Rio De Janeiro, RJ 22453-900
Brazil

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