The Law is Reason Free From Passion

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Ideally, the law would be “reason free from passion” (Aristotle).

However, Douglas Linder and Nancy Levit paint a different picture in the Good Lawyer:

Intuitions precede reasoning and, for the most part, play the larger role in our decision making, both in our lives and in our professional careers. We use effortful reasoning mostly to rationalize the decisions of our automatic thinking and rarely to override it. We tend to greatly overestimate our ability to control our unconscious inclinations; for the most part, they control us.

People generally rationalize decisions after the fact and “act from emotions and instincts” (Clarence Darrow on “How to Pick a Jury” 1936).

Darrow’s insight runs contrary to the messages taught in law school. In law school, ¬†professors focus on case law and the ratio decidendi (rationale for the decision). Rarely, do professors stop to discuss the cognitive traps present in the case. For instance, did the judge use a mental shortcut to arrive at the decision?

Linder and Levit write that: “what distinguishes judges from the rest of mankind is their ability to justify their intuition-based decisions with reasons that might strike readers as neutral or objective”.

The law may appear neutral on its face. But, the law is rarely ever free from emotion or politics. Rather, passion remains hidden beneath the facade of reason.

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