Limited rationality and judicial cognitive biases: On the duty to judge without cognitive biases; [Racionalidade limitada e vieses cognitivos judiciais. Sobre o dever de julgar sem vieses cognitivos]

Santa Cruz Cahuata J.C. · Revista Oficial del Poder Judicial (2024) · DOI: 10.35292/ropj.v16i22.1052

Resumen

This article provides a general approach to the problem of judicial decision-making rationality in a context of limited rationality due to biases; specifically, it seeks to answer the question of whether judges have a duty to adjudicate without cognitive biases. Despite the practical importance of this issue, there are no legal provisions or studies that explicitly address it. I argue that there is an institutional legal duty to design a justice system that mitigates the risk of cognitive biases in judicial decisions; however, judges have a deontological duty to implement measures to manage the risk of their decisions being affected by such biases. I argue, first, that the limitations of human rationality do not preclude the possibility of judges making rational legal decisions, as rationality is contextual, and in the legal domain, it is possible to delimit the subject matter of the decision and the relevant information to define its variables. The limitations to rational judgment primarily stem from internal contexts, particularly from characteristics of human thought, such as cognitive biases. Second, the right to a rationally reasoned judgment underpins the duty of judges to adjudicate rationally; however, this does not necessarily imply that judges are obligated to adjudicate without cognitive biases, as the existence and scope of this duty depend on additional conditions. Third, the current state of the scientific and cultural context in Hispanic America does not support the notion of an individual legal duty for judges to implement measures to control cognitive biases; however, it does support their deontological duty. Furthermore, there are sufficient grounds to assert the state’s duty to engage in institutional design aimed at controlling judicial biases.

Instituciones: Universidad Nacional de San Agustín de Arequipa