The Cognitive Impact of Legal Structure on Comparative Legal Reasoning

Applying psychological arguments towards legal decision-making processes challenges aspects like the widely assumed judicial impartiality with no room left for policy considerations or biases, as suggested by legal formalism. Instead, it suggests that the comparative nature of legal decision-making processes causes judges, for instance, to overweigh salient facts compared to impartially verified facts or well-defined law.
Pointing out that salient pieces of information stand out to legal decision-makers, current research is less precise in identifying which information stand out and how such information affect judicial processes, judicial outcomes, and the effectiveness of legal systems. Yet, the latter is relevant as it supports a better understanding of how existing legal structure is perceived by those acting within given legal boundaries and how effective such a legal infrastructure is in ensuring that decision-makers act within the foreseen confines.
The following presentation uses this shortcoming as a motivation to integrate legal research on comparative legal reasoning with psychological scholarship on cognitive comparison. Combining the two research streams will shed new light on the cognitive drivers and consequences of (1) legal decision-making by precedent and (2) parallel legal structures, as well as demonstrate a cognitive dimension of comparative legal reasoning.
In other words, utilizing a cognitive lens to analyse comparative legal reasoning processes can support a better understanding of how legal structure is perceive by the involved decision-makers, which, in turn, provides insight on how comparative elements – inherent to legal processes – influence respective legal decision-making outcomes.