Judicial decisions, intellectual virtues and the division of labour
| DOI | 10.1177/1365712719894007 |
| Published date | 01 April 2020 |
| Date | 01 April 2020 |
| Subject Matter | Articles |
Article
Judicial decisions, intellectual
virtues and the division of labour
Leandro De Brasi
Alberto Hurtado University, Departamento de Filosof´
ıa, UAH Alameda, RM, Chile
Abstract
In this paper I argue that, given that one epistemic goal of judicial decision-making is to reach
reasonably plausible decisions, the divisions of epistemic and cognitive labour help processes of
judicial decision-making to better promote that goal under certain conditions. Those condi-
tions concern the possession of a certain intellectual character (in particular, a humble and
autonomous character) by the subjects exploiting those divisions of labour and the existence of
a certain diversity among those subjects. So, in order to better promote reasonably plausible
decisions, we should take measures that make it likely that those divisions of labour are
exploited under those conditions. Given this, some prescriptive recommendations are made.
Keywords
Collective deliberation, diversity, expert testimony, intellectual autonomy, intellectual humility
Introduction
Many judicial decisions are already made by collec tives, such as collegiate courts (including trial,
appellate and constitutional courts) and juries, in different judicia l systems. This can be a positive
feature of these systems if, as I argue in this paper, the divisions of epistemic and cognitive labour are
properly instantiated in those collectives, given that they help us improve the epistemic performance of
judicial decision-makers. M ore specifically, I argue that , given that one epistemic goa l of judicial
decision-making is to reach reasonably plausible decisions, the divisions of epistemic and cognitive
labour help processes of judicial decision-making to better promote that goal under certain conditions.
Those conditions concern the possession of a certain intellectual character (in particular, a humble and
autonomous character) by the subjects exploiting those divisions of labour and the existence of a certain
diversity among those subjects.
1
So, in order to better promote reasonably plausible decisions, we should
Corresponding author:
Leandro De Brasi, Alberto Hurtado University Departamento de Filosof´
ıa UAH Alameda 1869, 3er piso Santiago, RM 8340576
Chile.
E-mail: ldebrasi@uahurtado.cl
1. This work then falls within the area of legal epistemology and in particular the growing field of epistemic virtue jurisprudence
(see, e.g. Amaya, 2011; Haddad Bernat, 2017; van Domselaar, 2018). However, most work done within legal epistemology is
The International Journalof
Evidence & Proof
2020, Vol. 24(2) 142–161
ªThe Author(s) 2019
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1365712719894007
journals.sagepub.com/home/epj
take measures that make it likely that those divisions of labour are exploited under those conditions.
Given this, some prescriptive recommendations regarding this epistemic goal are made. However,
recommendations require a context and, for simplicity’s sake, I have restricted such context to collegiate
courts in an adversarial system. Nevertheless, the conclusions here drawn apply to judicial decision-
makers generally (judges and jurors) in adversarial and non-adversarial systems and so further and wider
recommendations can be prescribed. Moreover, the recommendations here offered are not to be regarded
as concrete institutional measures, given at least the abstraction from other (epistemic or otherwise)
goals of the system.
In what follows then, I briefly explain in the next section the importance of promoting reasonably
plausible judicial decisions. Having done that, I introduce the epistemic structure of society by focusing
first on expert testimony as an instance of the division of epistemic labour and the need to epistemically
monitor the sources and instances of testimony. In ‘Ignorance, knowledge illusions and the division of
epistemic labour’ it is noted that our psychological make-up promotes knowledge illusions which stop us
from taking advantage of such division of labour but this can be counteracted by the intellectual virtue of
humility. Moreover, it is argued that the intellectual virtue of autonomy is also required for the adequate
monitoring of testimony. Next, collective deliberation is introduced as an instance of the division of
cognitive labour and its potential epistemic benefits appreciated. It is noted that both intellectual virtues,
humility and autonomy, as well as a certain diversity, play a key role in realising that potential. So both
virtues are required to take advantage of both divisions of labour considered. Given that, some pre-
scriptive recommendations are made in ‘Judges, expert testimony and collective deliberation’. Finally,
I offer some brief concluding remarks regarding future work about concrete institutional measures.
Epistemic value and judicial decisions’ acceptability
One thing, among others, that courts are meant to produce is decisions that tend to be acceptable. For
judicial decisions to have this tendency, they need to have a certain epistemic value. For example, the
trial processes of evidence and testimony (say, by the adversarial parties) and deliberation (by
the deciding party) are intended to reach decisions that convict only the guilty and exonerate only the
innocent. Of course, these processes are fallible, as all human-dependent processes are. But if we didn’t
believe that they have this aptness to convict only the guilty and exonerate only the innocent, it would be
difficult to see why we wouldn’t take matters of justice into our own hands: in other words, why we
would accept the decisions as legitimate.
So, minimally, judicial decisions are meant to be regarded as being plausible: that is, likely to be true.
But it is not enough that the deciding party (say, the judge) appreciates such plausibility. The decisions’
plausibility is, in principle, meant to be epistemically accessible to everyone. And, for people to be able
to appreciate it, the decisions are meant to be reasonable: that is, to be supported by some sort of
dialectical justification.
2
It is partly due to this epistemic value, which the decisions are meant to possess,
that they are acceptable.
So one goal of the legal system, or so I will assume here, is to promote, as I’ll say, reasonably
plausible decisions: that is, judicial decisions supported by dialectical justifications that allow us to
believe that they are likely to be true. But, of course, epistemic optimisation along this dimension is
individualistic in nature and ignores the social dimensions of epistemic goods (but see e.g. Goldman, 1999; Herdy, 2014, 2016).
This work attempts to address the vacuum that one can currently find in legal epistemology with regard to the study of the social
dimensions of intellectual virtues relevant to the judicial decision-making process.
2. That is, a justification one can offer (say, by offering an argument or reason) in support of one’s view. Justification, following
most epistemologists (Cohen, 1984), is understood as being connected to the truth: ‘the distinguishing characteristic of [ ...]
justification [...] is its essential or internal relationship to the cognitive goal of truth’ (Bonjour, 1978: 5). This, however,
needn’t commit us to thinking that justification actually promotes truth (as any internalist about justification would agree; see
also Wedgwood, 2002). Of course, reasonableness is here understood as a term of art.
De Brasi 143
To continue reading
Request your trial