RESEARCH
LPL EDITIONS
RESEARCH ACADEMY
HAPPENING
RESEARCH
Theory and Philosophy of Law
Rationality and Law
Responsible Researchers:
Pedro Moniz Lopes
Pedro Moniz Lopes
Consultants:
Antonia Waltermann (Maastricht University); Pawel Banaś (Jagiellonian University of Krakow)
Antonia Waltermann (Maastricht University); Pawel Banaś (Jagiellonian University of Krakow)
Financing:
UIDB/04310/2020
UIDB/04310/2020
Project Status:
Ongoing
Ongoing
Summary
The mainstream view of legal theory and legal dogmatics remain rooted in the Cartesian dualism between «res extenso» and «res cogitans». The legislation itself presupposes a model of a rational human being. However, evolutionary psychology and philosophical naturalism seem to have shaken the foundations of foundationalist rationalism, which is increasingly questioned (see homo aeconomicus). The human mind is not a tabula rasa, passively recording the world, but rather a computer (or “Swiss army knife”) with different dispositions and functions. Organizes experiences and generates inferences. “Rationality” is increasingly impacted by circumstances and dispositions (ecological rationality). The treatment of the topic is not just methodical (e.g., the discussion of the empirical turn). Questioning the foundations of rationality has an extraordinary practical projection, extending from the evaluation of recent canons of rationality for judicial review (adopted by the Bundesverfassungsgericht) to the assessment of the impact of legislation and the effectiveness of public policies.
Objectives
Throughout the project, the aim is to have an integrated approach to the theme of rationality. The segmentation of scientific areas, despite the organizational aspect, has operated as an obstacle to interdisciplinary dialogue between the Naturwissenschaften and the Geisteswissenschaften. The project aims to clarify the various senses in which (and the various purposes for which) “rationality” is used, reconciling the conceptual and dogmatic aspect (armchair philosophy) with empirical analysis (field science), collecting contributions from each . On a more general level, we will seek to discuss the foundations of the various “rationality” proposed in the philosophy of science in general and in legal discourse in particular (whether of the legislator, of jurisprudence, or of legal argumentation). The ultimate purpose is for the results of this work to be designed and evaluated in light of the current legal system, from the legislative conception phase to the application phase (particularly, judicially) of the law.
Relevance
Rationality is, perhaps, one of the most popular themes in current scientific literature: from the most specialized literature to the most popular books such as «Nudge» (Thaler / Sunstein) or «Bounded Rationality - The Adaptive Toolbox» (Gigerenzer).
The purpose of combining cognitive sciences with the more analytical tasks of legal science has little or no precedent in Portugal, a country marked by a strong split between the Naturwissenschaften and the Geisteswissenschaften and still totally influenced by rationalist Cartesian dualism. National legal science, however, marked by an aversion to scientific hypotheses of rupture, has not opened space for the transposition into law of investigations into behavioral dispositions and mental decision-making processes that are, in several aspects, "nuclear points" in the functioning of a system legal. The project has, to this extent, a markedly innovative character and scientific relevance with notable practical application.
The aim is to establish partnerships with Universities that have research projects on the topics covered, namely the University of Maastricht (Research Network on Law and the Cognitive Sciences – https://www.lacs.academy/) and the Jagiellonian University of Krakow (Jagiellonian Center for Law, Language and Philosophy – https://pjf.uj.edu.pl/en_GB/start).
