Part Three of Scientific Proof of Law’s Overreliance On Reason: The “Reasonable Man” is Dead, Long Live the Whole Man

This is the final part of a three-part blog. You will need to read the first two segments for this conclusion to makes sense. See Part One and Part Two of Scientific Proof of Law’s Overreliance On Reason: The “Reasonable Man” is Dead, Long Live the Whole Man.

Final Word From Dan Ariely 

dan-arielyGetting back to Dan, the psychologist economist, in addition to teaching and running very clever experiments at MIT and Duke, Dan is the founder of an organization with a name that seems both funny and ironic, The Center for Advanced Hindsight. He is also a prolific writer and video maker, both activities I admire. See for instance his informative page at MIT, his blog at DanAriely.com, his several books, and his videos, and even though its slightly boring, see his web page at Duke.

As a final piece of evidence on overreliance on reason I offer more testimony by Professor Ariely’s via another video, one which is not at all boring, I swear. It is called The Truth About Dishonesty. It concludes with a subject near and dear to all lawyers, conflicts of interest. The non-rational impact of such conflicts turns out to be very strong and the law is wise to guard against them. Perhaps we should even step up our efforts in this area? 

Cornerstone Made of Pudding

The scientific experiments of Dan Ariely and others show that the cornerstone of the Law – reasonability – is not made of granite as we had thought, it is made of pudding. You can hide your head in the sand, if you wish, and continue to believe otherwise. We humans are quite good at self-delusion. But that will not change the truth. That will not change quicksand into granite. Our legal house needs a new and better foundation than reason. We must follow the physicists of a century ago. We must transcend Newtonian causality and embrace the more complex, more profound truth that science has revealed. The Reasonable Man is a myth that has outlived its usefulness. We need to accept the evidence, and move on. We need to develop new theories and propositions of law that confirm to the new facts at hand.

Science has shown that our current reason-only-based system of justice is on shaky grounds. It is now up to us to do something about it. No big brother government, or super think-tank guru is going to fix this for us. Certainly not scientists either, but they should be able to help, along with technologists, programmers and engineers.

homer-simpson-brain-scan

What are the implications of the findings of unreliable mental processes on the Law and our ability to reach just decisions? We should ask these questions concerning the Law, just like Professor Ariely is asking concerning Economics. Our fundamental legal assumption that all people can act out of reason and logic alone is false. Decisions made with these faculties alone are the exception, not the rule. There are a number of other contributing factors, including emotions, intuition, and environment. What does this mean to negligence law? To sanctions law? Now that the Reasonable Man is dead, who shall replace him?

Just as classical economic theory has had it all wrong, so too has classical legal theory. People are not built like reasonable machines. That includes lawyers, judges, and everyone else in the justice system, especially the litigants themselves.

If Not Reason, Then What?

Ralph_moustacheSince human reason is now known to be so unreliable, and is in fact, only a contributing factor to our decisions, on what should we base our legal jurisprudence. My answer is in the title of this blog. I believe that the Reasonable Man, now that he is known to be an impossible dream, should be replaced by the Whole Man. Our jurisprudence should be based on the reality that we are not robots, not mere thinking machines. We have many other faculties and capabilities beyond just logic and reason. We are more than math.

So I propose a new, holistic model for the law. It would still include reason, but add our other faculties. It would incorporate our total self, all human attributes. We would include more than logic and reason to judge whether behavior is acceptable or not, to consider whether a resolution of a dispute is fair or not.

A new schemata for a holistic jurisprudence would thus include not just human logic, but also human emotions, our feelings of fairness, our intuitions of what is right and just, and multiple environmental and perceptual factors. I suggest a new model start simple and use a four-fold structure like this, and please note I keep Reason on top, as I still strongly believe in its importance to the Law.

4-levels-Holistic_Law_pyramid

Some readers may notice that this model is similar to that of Carl Jung’s four personality types and the popular Myers Briggs personality tests. I am not advocating adoption of any of their ideologies, or personality theories, but I have over the years found their reference models to be useful. The above model, which is proposed only as a starting point for further discussion, is an extrapolation of these psychological models.

Call For Action

No one knows yet knows the full implications of the new data from science about the limited impact of logic and reason on human decisions. No one knows how to modify our legal systems to account these insights. Certainly I do not. But I do know that we should do something to reduce our overreliance on the Myth of the Reasonable Man. We should put the foundations of our legal system on something else, something more solid, more real than that.

In short, we need to put our house in order before it starts collapsing around us. That is the reasonable thing to do, but for that very reason we will not start to do it until we have better motivation than that. You cannot get people to act on reason alone, even lawyers. So let us engage the other more powerful motivators. To start the ball rolling, I will give special recognition and publicity to the best suggestions received from my readers to this problem, the best comments to this blog.

Maybe reason alone should always be secondary to simple fairness? Maybe that feeling of fairness, is more reliable than reasoned processes. Run the experiments please scientists. How reliable are our feelings of fairness? More importantly, what is the impact of feelings on our judges who pay attention to that? Maybe feelings should be on top of the new Holistic model. I personally doubt that, but who knows for sure until experiments are done. What I do not doubt is that feelings need to be taken into consideration more than they are now as true motivators of human action.

Maybe this means we should bring back equity, and down play law, like the old days, where we used to have Courts of Law and separate Courts of Equity. By the middle of the last century, Courts of Law won out in most states except Delaware, Mississippi, New Jersey, South Carolina, and Tennessee. Separate Equity Courts were closed down in favor of Courts of Law. Maybe we got it backwards. Maybe we were all led astray by our false confidence in reason.

Maybe we should now close our courts of Law and reopen our courts of Equity? How has it worked out for the states that kept equity courts? Have Chancellors truly been able to side-step strict rules of law when they felt it was equitable to do so? If so, how has that worked out? Has power been abused? Or has justice been attained more often? What can we learn from chancery courts that might help us build a more holistic court of the future?

A Few More Specific Suggestions of Reform

As discussed already, the AI enhancements now moving the law will continue to expand as a tool for the lawyers willing to learn how to use them. They will enhance and help improve our limited reasoning abilities. They will help us be more efficient.  They could also help us to stay completely honest, if we allow them to. So too will more emotional, in your face type judges, whether we let them or not. We need more judges who do not mind getting down into the weeds, to really understand the facts, and then tell you what they really think, both good and bad please.

Maybe timely reminders of ethics codes and serious under penalties of perjury type threats will also help? Maybe new, improved, and customized oaths will help? Oaths have been shown to be effective by Ariely’s research, so we should modify the rules accordingly.

Electrodes_EEG_RalphMaybe new truth recognition technologies should be used? Could a truth hat with built-in neural net be that far off? How about Google Glasses apps that provide reliable new feedback of all kinds on the people you watch testifying? That cannot be too far off.  (The lie detection apps already on the market for iPhones, etc., all look bogus to me, which is not unexpected based on the limited biofeedback the phone sensors can provide.) Even if the information is not admissible as evidence, it could still be quite valuable to lawyers. (Write me if you know of anyone working on any commercial projects like this for lawyers.) Perhaps some of the recent discoveries in neuroscience could begin to be used in the justice system in all types of unexpected ways?

trophy_LawMaybe public recognition and awards to lawyers and judges who get it right will help? And awards to litigants who do the right thing, even if they lose the case? How about a discretionary set-off for defendants like that? How about the converse? Shame can be a powerful motivator too.

Maybe we should change the conditions and environments of places where witnesses are questioned, where mediations and trials are conducted? Maybe we should provide special training to court reporters on oath giving? Maybe we should have trials again, and not just settlements?

We need to look for all kinds of motivators. Knowledge and reason alone are not a solid foundation for justice.

Conclusion

Changes are inevitable anyway in all social structures, so we should try to shape the ongoing changes in the Law. We should study what science has found and be guided by truth, not tradition.

We should try to move away from overreliance on reason alone. Where we must still rely on reason, and of course we must, we should look for science and technology based methods to impose even more checks and balances on reason than we already have. We should create new systems that will detect and correct the inevitable errors in reason that all humans will make – lawyers, judges and witnesses alike. Perhaps computers can help with this? Perhaps it would help to have easier and less expensive appeals? Especially interlocutory appeals? Perhaps greater use of experts, panels and special masters? We really need to start focusing on this, and, by the way, we cannot just think our way out of a prison of thought. We need to use all of our faculties.

We also need help from the scientific community. We need someone like Professor Ariely to focus on Law the way he has focused on Economics. So far I have not found anyone like that.

Please feel free to share any ideas you may have in the Comments to this blog below, or by private email to me. Again, the best comment will be recognized and praised. I may even give you some shout-outs at LegalTech this week. By the way, if you see me there, please take a moment to stop me and introduce yourself. I always like to meet my readers. If you know of any research psychologists who might be interested in these issues, please share this blog with them. I have already reached out to Dan Ariely. He responded right away and promised to provide a more detailed reaction later. When he does I will share his input in a later blog.

4 Responses to Part Three of Scientific Proof of Law’s Overreliance On Reason: The “Reasonable Man” is Dead, Long Live the Whole Man

  1. Jeff Johnson says:

    Hume would be proud. As Kant would say, you have awakened me from my dogmatic slumbers. Even so, I pessimistically predict with a 76% confidence level that Reason qua Reason will eventually prompt Federal funding for The Center for Advanced Hindsight.

  2. A most interesting blog series. I was unaware of Dan Ariely before reading these and will look forward to seeing more on him in Ralph’s blog. The videos were so entertaining and instructive I decided to research for more and read his book, The Honest Truth about Dishonesty.

    Human reasoning is in itself a provocative topic. But it offers special challenges when viewed through the lens of the The Reasonable Man standard. The question of its continued appropriateness as a legal standard or paradigm is not simply a matter of a more politically correct alternative. The reasonableness standard itself needs revisiting.

    Losey’s holistic alternative would include feelings and emotions, perceptions, and intuitions. I can’t argue against that. These aspects of our humanness play definite and even crucial roles in cognition and decision-making. However, they float in a rudderless ship without Reason, as Losey displays by keeping it atop his pyramid. Rationality is our source of continuity.

    Victoria Nourse also finds fault with The Reasonable Man standard; she advocates a heuristic, or experience-based approach. We are making a “category mistake” by using the metaphor of human beings, she says. Frankly, I am missing her point, unless she means that The Reasonable Man is synecdochic for rationality. Regardless, let’s speak plainly about what will advance the cause, which is, I believe, to provide an avenue for redressing wrongs — civil and criminal – through fair and meaningful standards as applied to decision-making.

    The Reasonable Man was as much a product of its era as will the “new” standard be a product of this era. Few were probably surprised when the 1837 English case, Vaughan v. Menlove, Ct. of Common Pleas, ENG established the “average man” as a legal standard. Reasonableness was all the rage, after all, being a development of, and response to the Age of Reason and the Industrial Revolution. Social, political, and philosophical norms were, pretty much, up for grabs. Sound familiar?

    To paraphrase Thoreau: We are slaves to and of our technology. It was Adolphe Quetelet (1796-1874), “one of the century’s most singular and influential thinkers concerning the use of social statistics,” who developed the statistically average man – the human bell curve – motivating formation of The Reasonable Man.

    “Statistically average” as a concept does society and justice an injustice, though. The new normal distribution is flattened and skewed. Our standard deviations define us. Globalization, bit coins, cybercrime, terrorism, Twitter, Facebook, and – you name it – scatter us apart in the crowd. The Melting Pot has become a raging cauldron churning its amalgam of diversity. Can we even imagine where this watershed in history will deposit us?

    One of the greatest foibles of The Reasonable Man – but so very human when you think about it — was to not take into account uncertainty. However, we might be wise now to embrace its consequences.

    I’m reminded of the butterfly effect. Coined by Edward Lorenz, I first read about it the 1988 book by James Glick, Chaos: Making a New Science. The butterfly effect (sensitive dependence on initial conditions) simply means that a small change in the beginning can lead to a drastically different outcome.

    In order to make good decisions, people need accurate and sufficient information. Unfortunately, gathering and filtering information for its accuracy and sufficiency is not always easy. The only method I can think of is Bayes Theorem adapted to critical decision making, since it is perhaps the best method of working backward from an event to the most probable cause.

    I’m not sure what we would call this new paradigm, but its formulation is inevitable. The Reasonable Man was the product of the thinking and writing by statistically minded scholars absorbed in their own revolution of change.

    Our revolution of change requires different thinkers and writers. Those who may be in the best position to at least write enlightened (and enlightening) treatises on the subject of a new legal standard to replace The Reasonable Man are legal practitioners absorbed in e-discovery. Where else is uncertainty and working backwards from an event more prevalent?

  3. […] On Reason: The “Reasonable Man” is Dead, Long Live the Whole Man, Parts One, Two and Three; and The Psychology of Law and Discovery. I am speaking about the few lawyers who have human […]

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