Between Legal Philosophy and Cognitive Science: The Tension Problem

• Published date: 01 June 2022
• Author: Marek Jakubiec
• Date: 01 June 2022
• DOI: http://doi.org/10.1111/raju.12342

© 2022 University of Bologna and John Wiley & Sons Ltd.

Ratio Juris. Vol. 35 No. 2 June (223–239)

Between Legal Philosophy and

Cognitive Science: The Tension Problem

MAREK JAKUBIEC*

Abstract. Much controversy has arisen in recent years about the relation between legal philoso-

phy and cognitive science, with some authors announcing a revolution brought about in law

by the advances in the scientific study of cognition. At the same time, pessimistic declarations

were made, and the significance of cognitive science for law and legal philosophy was denied.

In this paper I argue that representatives of legal philosophy are now facing a “tension prob-

lem” which comes as a consequence of the following beliefs: that legal philosophy should be

naturalized; that contemporary cognitive science is not a source of knowledge proper, that is,

a source of naturalization; and that contemporary cognitive science is the best available source

of knowledge about cognitive mechanisms. To illustrate the significance of the problem, a case

study is presented that concerns research devoted to abstract concepts and its significance for

the issues analyzed by legal philosophers, such as legal concepts and legal cognition. More gen-

eral remarks about the manner of naturalizing jurisprudence are also presented.

1. Introduction

This paper is aimed at portraying a model of the relation between cognitive science

(henceforth CS) and legal philosophy (henceforth LP), with a special emphasis placed

on what will be called the “tension problem.” The interactions between CS and law

have been the subject of intensive research over the last twenty years (recently in par-

ticular in the context of so- called neurolaw: see, e.g., Busey and Loftus 2006; de Kogel,

Schrama, and Smit2014; Pardo and Patterson2013; Shen2016). The relation between

scientific knowledge about cognition and law (legal knowledge) is typically analyzed

in the context of “law in action,” i.e., the opportunities for practical application of

advances in neuroscience in legal procedures. For instance, there arises the question

of whether neuroscience— as a part of CS— will in the future play as significant a role

in law as economics does now.

There have also been examinations of how results obtained within CS may af-

fect LP and legal theory (see, e.g., Brożek 2019; Fruehwald 2006; Larsson 2017;

Roversi2015, 2016; Roversi, Pasqui, and Borghi 2017; Winter2001; Załuski 2014).

However, the methodological requirements for applying these results in philosoph-

ical analyses of the nature of law, legal cognition, etc., have not been a subject of

* Research for this paper was funded by the National Science Centre, Poland (Harmonia Grant No.

2018/30/M/HS5/00254). The author would like to thank the entire Harmonia grant team for

helpful comments, as well as Andrzej Światłowski, Ewa Grzęda, Kamil Mamak, and Dominik

Zając for help in unearthing some interesting case law.

Marek Jakubiec224

Ratio Juris, Vol. 35, No. 2© 2022 University of Bologna and John Wiley & Sons Ltd.

detailed analysis. Some of the contemporary legal philosophers interested in CS—

Berger (see, e.g., Berger2004), Larsson (see, e.g., Larsson 2017), Winter (see, e.g.,

Winter2001)— tend to see the role of CS as revolutionary or at least innovative in the

field of legal philosophy and, more generally, legal science. They implicitly or explic-

itly agree with Mark Johnson, cofounder of conceptual metaphor theory (Lakoff and

Johnson1980; 1999), who claims that

[h]uman law is a many- splendored creation of the human mind, that is, of human under-

standing and reasoning. The primary business of the cognitive sciences is to study empirically

how the mind works. Therefore, cognitive science ought to give us insight into the nature of

legal concepts and legal reasoning. Even though the “cognitive science of law” is a very re-

cent development, its potential for transforming legal theory is substantial. (Johnson2007, 845)

On the one hand, it would be difficult to disagree with this stance. Progress in the

scientific study of mind and cognition is undeniable, and it affects law in a multidi-

mensional way. On the other hand, the existence of many competing research pro-

grams within CS,1 still a relatively young discipline, may lead to a position that may

be called “moderate” or even “skeptical” rather than “revolutionary” when it comes

to the significance of the results obtained by cognitive scientists for LP. There is no

one “scientific view” of human cognition; rather, CS should be seen as a conglomer-

ate of views, to some degree in competition with one another. This gives rise to the

fundamental problem: which of the theories shall be treated as a source of scientific

knowledge that may enrich LP (especially legal epistemology)?

In this paper, I will discuss the main aspects of the tension problem that arises

when the relation between LP and CS is examined. It will be emphasized that the

evaluation of the role played by CS in LP (and in law, generally) should be set within

the analysis of the current debates that concern crucial elements of the respective the-

ories and research programs of CS. Examples of these discussions are selected here,

including the currently hotly debated questions about the way abstract concepts are

grounded. The analysis of the selected aspects of one of the most important theories

of embodied abstract concepts, namely, cognitive metaphor theory,2 will make it pos-

sible to elucidate the problems linked to this approach that are also representative

of other theories. It will allow us to point out how far cognitive scientists are from

definitive conclusions about the way the human mind works.As I will present below,

CS affects the philosophical theorizing about the nature and role of legal concepts

(which are mostly abstract) but in a limited way. This case study will serve as an

illustration of the philosophical arguments presented herein.

I will argue that even if we agree that CS is a model of a science that revolutionizes

our understanding of human intellectual capacity, it is still not clear exactly how LP

may be affected by advances in the scientific study of human cognition. However,

there seems to be a consensus that LP (and law in general) needs to be naturalized,3 i.e.,

1 CS itself, as a discipline, is often deemed to be a research program. In this paper, I refer to embod-

ied cognition understood as one of the contemporary crucial research programs within the CS.

2 That this is indeed among the most important such theories is certainly a controversial opinion; it is,

however, shared by numerous cognitive scientists (see, e.g., Borghi et al.2017; Jamrozik et al.2016).

3 Nevertheless, there are major differences with regard to the character, scope, and limits of

naturalization, and the very meaning of naturalization and naturalism.