Thought Experiments in the Law
37 Pages Posted: 13 Sep 2022
Date Written: September 9, 2022
Our responses to thought experiments inform our understanding of, and our normative beliefs about, the law. Such thought experiments may involve, for example, the use of interrogational torture in the context of great public danger; desperately trapped amateur cave explorers; runaway trolleys, and other such scenarios. Law students and appellate advocates are invariably counseled, understandably, to accept, and thus not to fight, a posed hypothetical. As it turns out, though, for reasons explored herein, failing to intelligently fight the hypothetical at any point is generally a serious mistake.
Keywords: thought experiments, hypotheticals, torture cave explorers, Lon Fuller, trolley problem, habit, virtue
JEL Classification: K10
Suggested Citation: Suggested Citation