Cultural Cognition and the Thoughtful Judge

Abstract

That judges follow what the law is, and not what they wish it was, is a requirement of the rule of law. At the same time, scholars, lawyers, and judges often say that judges’ values influence their decisions. Connecting these two ideas has generated a conversation about the relationship between law, ideology, and politics. 

Recently, part of this conversation has focused on a theory called cultural cognition. The theory offers an account of how people’s values shape how they interpret things without their noticing. People whose values tend toward hierarchy sometimes perceive facts differently than people whose values tend toward egalitarianism, and communitarians sometimes perceive facts differently than individualists.

But cultural cognition is underappreciated in legal interpretation. In law, cultural cognition theory is sometimes associated with legal realism, and people who are not legal realists might discount it for that reason. Recent empirical work has also concluded that judges have some skill at avoiding cultural cognition’s influence when interpreting the law.

In this Article, I argue that cultural cognition is a more powerful concern for legal judgment than recognized. If cultural cognition exists, then it can influence legal judgment according to many theories of law, not just legal realism. Legal judgment is also susceptible to influences that are hard to track empirically. Figuring out the content of disputed laws is amenable to the values-driven influences—and errors— that cultural cognition theory contemplates.

Cultural cognition poses a problem for the thoughtful judge. Avoiding its power requires cultivating a reflective and curious attitude toward legal questions, which may be expressed in judicial virtues like wisdom, temperance, and humility. Cultural cognition theory also gives reason for concern if the judiciary separates into values-based groups.