The psychology behind human decision-making and judgment is widely thought to be rational, analytical, and consistent. Our society fetishizes economic forecasts, political statistics, and the digitization of identity through social media. In such a society, it is satisfying to view decision-making as mechanical, predictable, and coherent.
However, over the past decade or so, psychological research has unveiled a strikingly different view of human judgment. It has portrayed human judgment as far more automatic, intuitive, and unconscious than we, and our policy-makers, currently appreciate. Below, we will investigate one critical study 1 that has fundamentally altered our view of judgment, and assess the societal implications of its findings.
In this study, researchers investigated how subjects rated the severity of various legal issues, and how they determined reparations. Subjects were presented with a single pair of cases, one concerning physical harm, and the other financial harm.1 The subjects were first asked to consider one issue in isolation and rank its severity from 1 to 10. They were then presented with the second scenario, and were asked to rank its severity, and then modify, if desired, their first judgment.
The results were clear: people judge cases differently in isolation than if they are allowed to consider offenses in a different category. A person will judge a case of financial harm as far less severe if she is presented with a case of physical harm.
This is because human decision-making is categorical. People spontaneously compare an injustice to related injustices within a certain category.2 When presented with a pick-pocketing, a juror will spontaneously consider bank-robbery, burglary, or any number of related offenses.
This study shows that categories drawn in isolation are changed when new situations are introduced. When thinking about the failure of a child safety-cap, a person might automatically compare this to the failure of an amusement park ride or a car-seat. But they might be excluding other categories, like financial harm. When this new category is introduced, the subject changes her initial judgment. She realizes, now, that physical harm is much more severe. Now that her menu of categories is broader, she makes a new judgment that she feels is more just, and which disagrees with her initial judgment.
These findings reveal that humans are not purely mechanical, analytical, and consistent in their judgment. They draw on experiences and intuition, quickly and spontaneously creating and comparing categories, rather than analyzing situations purely and logically. They are inconsistent in their judgment, changing their minds as they are presented with new contexts.
These conclusions have important implications for law in society. Clearly, if judgments made in isolation disagree with those that would be made after a broader examination, this is a problem. Unfortunately, the current justice structure facilitates this problem. Jurors are forced to consider subjects in isolation, and little effort is made to provide them with a broad menu of considerations that would allow them to make judgments that they would be satisfied with. Instead, juries are isolated from outside considerations; the study that we have reviewed suggests that they themselves would disagree with the decisions made under this restriction.
We can remedy this problem, but solutions require us to face many daunting problems.
More power could be given to judges, who regularly confront a broader and more complete menu of experiences, and are thus more consistent. But the weakening of the jury presents a new problem: the jury is a microcosm of the society which informs and is affected by the law; it is the philosophical core of the criminal justice system. The transference of power from jury to judge, while possibly more conducive to our psychological judgment process, would have to navigate many significant philosophical and legal obstacles.
Jurors could be presented with a broad array of moral considerations for the case, but here, issues of bias arise, especially if the justice system itself provides considerations that could artificially and unjustly tilt the trial in one direction. Lawyers could perhaps be given the option of presenting various scenarios to the jury that would enhance understanding and consistency. But here, lawyers might intentionally provide a poverty of information in order to buttress their case. The lawyer prosecuting a petty thief does not want to bring up bank robbery.
Even if we could create a system to better inform juries and enhance consistency, evaluating its effectiveness would be difficult, if not impossible. It is an ethical taboo to force a juror to reveal her vote. Furthermore, it seems implausible to present a juror with scenario after scenario and measure her judgment on the trial until it is consistent – this reeks of judicial engineering.
Clearly, numerous problems impede our task of eliminating the unjust fluctuations in human judgment. Still, the unveiling of the unconscious, intuitive, and comparative engines of judgment enrich our understanding of the human mind and present important and fundamental issues for our legal system to engage with. The study inspected above is but one specimen of many very recent psychological developments that are revolutionizing our conception of the human, her mind, and her place in society.
- Sunstein CR, Kahneman D, Schkade D, Ritov Ilana. “Predictably Incoherent Judgments.” Stanford Law Review, Vol. 54, No. 6. June 2002.
- Kahneman D, Miller D. “Norm Theory: Comparing Reality to its Alternatives”. 93 Psychol. Rev. Vol. 136. 1986.
- Image credit (public domain): Daderot. “Oblique facade 2, US Supreme Court“. Wikimedia Commons. June 2008.