Can Emotional Dogs and Their Rational Tails in the Courtroom
Get into the Space of Reasons?

TVRDÍKOVÁ, Linda. Can Emotional Dogs and Their Rational Tails in the Courtroom Get into the Space of Reasons? In Critical Legal Conference. 2022.

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TY  - CONF
ID  - 2214499
AU  - Tvrdíková, Linda
PY  - 2022
TI  - Can Emotional Dogs and Their Rational Tails in the Courtroom Get into the Space of Reasons?
KW  - space of reasons
KW  - moral intuitions
KW  - analytic philosophz
KW  - cognitive science
N2  - If we talk about the interpretation and application of law, then moral reasoning is often mentioned. Ronald Dworkin considers moral reasoning to be essential in resolving difficult constitutional issues. Dworkin's approach and his theory is defined against positivism, it should be noted that this thesis of Dworkin was not disputed by legal theorists and philosophers from the positivist camp (Herbert Hart or Joseph Raz) where they differ from Dworkin was that he did not necessarily consider them as part of the law. Joseph Raz “only” argues that in such cases judges exercise their discretion. Thus, even positivists do not deny that moral reasoning plays a role in the interpretation and application of law, including in the case of judicial decision-making. From this we can conclude that the question of moral reasoning is relevant, not only from the perspective of iusnaturalists or anti-positivists, but also from the perspective of positivists. Therefore, it may be surprising that we do not deal much with these within legal theory. This paper aims to fill this "gap" in our theoretical and legal knowledge and to focus on this. It aims to explain how judges decide which interpretation to use where the hypothesis is that moral intuitions might play a crucial role. For this analysis Jonathan Haidt´s social intuitionists model will be used. Haidt when discussing our moral decisions and reasoning speaks about our emotional dog which makes the decisions and his rational tail which then just justify it post hoc (and sometimes very poorly). In this paper I want to argue that even if this is true even in the case of judges, we do not have to be afraid that the decisions will automatically be unjustified. I want to argue that if certain conditions are met (and we will mention them) then, despite the fact that it is our emotional dog which makes the decision, we can reach reasonable solution. Thanks to the fact that judges have to formulate their justification in language and the fact that reasoning is primarily the social enterprise, those dogs can get into the space of reasons.
ER  -

Basic information
Original name	Can Emotional Dogs and Their Rational Tails in the Courtroom Get into the Space of Reasons?
Authors	TVRDÍKOVÁ, Linda (203 Czech Republic, guarantor, belonging to the institution).
Edition	Critical Legal Conference, 2022.

Other information
Original language	English
Type of outcome	Presentations at conferences
Field of Study	50501 Law
Country of publisher	Norway
Confidentiality degree	is not subject to a state or trade secret
RIV identification code	RIV/00216224:14220/22:00130010
Organization unit	Faculty of Law
Keywords (in Czech)	prostor důvodů; morální intuice; analytická filosofie; kognitivní věda
Keywords in English	space of reasons; moral intuitions; analytic philosophz; cognitive science
Tags	rivok
Tags	International impact
Changed by	Changed by: Mgr. Petra Georgala, učo 32967. Changed: 5/4/2024 15:52.

Abstract

If we talk about the interpretation and application of law, then moral reasoning is often mentioned. Ronald Dworkin considers moral reasoning to be essential in resolving difficult constitutional issues. Dworkin's approach and his theory is defined against positivism, it should be noted that this thesis of Dworkin was not disputed by legal theorists and philosophers from the positivist camp (Herbert Hart or Joseph Raz) where they differ from Dworkin was that he did not necessarily consider them as part of the law. Joseph Raz “only” argues that in such cases judges exercise their discretion. Thus, even positivists do not deny that moral reasoning plays a role in the interpretation and application of law, including in the case of judicial decision-making. From this we can conclude that the question of moral reasoning is relevant, not only from the perspective of iusnaturalists or anti-positivists, but also from the perspective of positivists. Therefore, it may be surprising that we do not deal much with these within legal theory. This paper aims to fill this "gap" in our theoretical and legal knowledge and to focus on this. It aims to explain how judges decide which interpretation to use where the hypothesis is that moral intuitions might play a crucial role. For this analysis Jonathan Haidt´s social intuitionists model will be used. Haidt when discussing our moral decisions and reasoning speaks about our emotional dog which makes the decisions and his rational tail which then just justify it post hoc (and sometimes very poorly). In this paper I want to argue that even if this is true even in the case of judges, we do not have to be afraid that the decisions will automatically be unjustified. I want to argue that if certain conditions are met (and we will mention them) then, despite the fact that it is our emotional dog which makes the decision, we can reach reasonable solution. Thanks to the fact that judges have to formulate their justification in language and the fact that reasoning is primarily the social enterprise, those dogs can get into the space of reasons.

Links
EF19_073/0016943, research and development project	Name: Interní grantová agentura Masarykovy univerzity
MUNI/IGA/1274/2021, interní kód MU	Name: Moral Intuitions in Law (Acronym: MINTIL)
MUNI/IGA/1274/2021, interní kód MU	Investor: Masaryk University

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Can Emotional Dogs and Their Rational Tails in the Courtroom Get into the Space of Reasons?

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