Integrative Literature Review

Revista Argentina de Clínica Psicológica 2020, Vol. XXIX, N°1, 1016-1021 DOI: 10.24205/03276716.2020.142

2020, Vol. XXIX, N°1,1016-1021

REVISTA ARGENTINA

DE CLÍNICA PSICOLÓGICA

1016

ANALYSIS ON UNCERTAINTIES IN JUDICIAL DECISION BASED ON COGNITIVE PSYCHOLOGY

Yongchao Li*

Abstract

A judicial decision is arrived at through fact reasoning, legal reasoning and decision reasoning. Due to the difference between judges in cognitive psychology, the above reasoning process is affected by uncertainty thought, resulting in uncertainties of the judicial decision. This paper explores deep into the uncertainties in judicial decision from the perspective of cognitive psychology, and puts forward some countermeasures. Specifically, the author analysed the cognition psychology of judges in the process of judicial decision, examined the manifestation of uncertainties in judicial decision, and conducted a psychological analysis of uncertainty thought. The results show that the cognitive psychology of law and justice is formed through long- term integration of learning and work; in the process of judicial decisions, judges are limited by their own cognition in the process of fact reasoning, legal reasoning and decision reasoning, resulting in an unfair judgment against one party; the uncertainties of judicial decision should be reduced from aspects of legislation, legal application procedures, the personal emotions and qualities of judges, as well as publicity and education. The research findings lay the basis for the application of cognitive psychology in judicial decisions.

Key words: Judicial Decision, Reasoning, Uncertainty Thought, Cognitive Psychology. Received: 19-02-19 | Accepted: 09-07-19

INTRODUCTION

The certainty of judicial decision is an important manifestation of formal rationality, mainly through the consistency of legal rules, but in any judicial decision system, "certainty" is the goal pursued (Foxall, 2014). At present, no jurist or legal institution's thought can occupy an absolute dominant position; it is only based on a certain angle, and absolute judicial uncertainty or certainty is one-sided (Rand, 2015). Moreover, the judicial decision process is a passive right, initiated on the litigation of the litigant, generally including th e identification of legal facts, the search for relevant legal norms, the subsumption according to the legal order, and the final declaration of judicial decisions (Vlek, 2010). In the entire judicial decision

Zhengzhou University School of Law, Zhengzhou 450001, China. E-Mail: [email protected]

process, the uncertainties of the judicial pro cess include the identification of legal facts and evidence collection and adoption, the timeliness of evidence, the criteria for the identification of evidence or facts, etc.; besides, considering the extreme complicatedness of the cases, the conflict of legal rules between judicial staffs is also a factor of uncertainty (Brinkman, 2017).

The judicial process is related to people's cognitive psychological state. As a special social psychological activity, judicial decisions formally express people's attitudes, concepts and theories about legal uncertainty, as well as their thoughts, perspectives, knowledge and psychology, etc. on judicial phen omena (Stone, 2010; Emma & Mcnaught, 2016). People's internal psychological behaviours are only ones that are no different from external behaviours while cognitive psychology is a by -product of behaviourism, in which people are active information explorers and do not change their thoughts and behaviours under the

YONGCHAO LI

2020, Vol. XXIX, N°1,1016-1021

REVISTA ARGENTINA

DE CLÍNICA PSICOLÓGICA

1017

environmental stimuli (Cunliffe, 2014). The psychological cognitive process of law is a cognition collection of legal characteristics formed in the individual consciousness after long-term accumulation and integration, including the subtle learning in daily life, work and study (Bishop, 2017). It is the uncertainty in the process of judicial decision that makes it impossible to anticipate the legitimacy of one's actions and thus fail to correctly un derstand the outcome of the decision (Davies, 2012). Based on the theory of cognitive psychology, this paper aims to explore the uncertainty of ideas in the process of judicial decision and gives corresponding countermeasures.

THE PROCESS OF JUDICIAL COGNITION

PSYCHOLOGY

Judicial decisions are based on legal ground, which is generated in social consciousness. The formation of legal consciousness is an important part of people's cognitive psychology. People's legal cognition process starts with sporadic le gal phenomena (Shapiro, Mixon, Jackson et al., 2015). One’s cognitive psychology begins from birth. Table 1 lists the four stages of cognitive development: at the sensorimotor stage, there develops a sense of good and bad, and the emotion will be more devoted to oneself; at the pre-operational stage, social behavioural activities begin to manifest, and there is no intentional concept in the process of cognitive psychology formation; at the concrete operational stage, human will and autonomy are mainly formed; at the formal operational, people's idealistic emotions appear and personality begins to form. Figure 1 shows the influencing factors of judicial cognition psychology, mainly including social learning, communication and mass communication, popularization of law, legal education, and legal research.

People's cognitive psychology of the judiciary needs to be taught and induced, e.g., in the course of people's growth or learning (Flanagan & Ahern, 2011). The process of communication is also an important channel for the formation of cognitive psychology, allowing people to share news, ideas and attitudes, and establish a cognitive identity and ideological resonance between people (Soboleva, 2013). The popularization and publicity of judicial knowledge has enabled people to directly

acquire judicial knowledge, gradually cultivated their awareness of judicial cognition, and continued to lay a solid legal foundation for the formation of a society ruled by law. Judicial lectures, seminars, reading clubs, and legal columns have all become common popularized forms of law so that people are always in contact with the law and obey the law, which can also greatly promote the cultivation of people's judicial cognition.

Table 1. Overview of each stage of cognitive development

Phase Principal variation

Perception- motion phase

The initial likes and dislikes emerge, and emotions pour out on

the self

Preoperational stage

For real social behavior to begin with, there is no concept of intention in moral reasoning

Concrete operational stage

The formation of will and the emergence of autonomy

Formal operation stage

The emergence of idealistic feelings, the formation of

personality began, began to adapt to the adult world

Figure 1. Formation of judicial cognitive psychology

Formation of judicial

cognitive psychology

Social learning

Communication and mass communication

Franco-prussian propaganda

Legal education

Legal research PSYCHOLOGICAL ANALYSIS OF UNCERTAINTY IN

JUDICIAL DECISIONS

The manifestation of uncertainty in judicial decisions

The uncertainty of judicial decisions is generated by the coordination and balance between the legality and rationality of the ruling. When the legal norms of the adjudicated cases are ambiguous or the facts are in conflict, the judges will have an idea of uncertainty; even if the legal norms of the judicial decisions are clear and the facts are clearly defined, the judicial officials may be subject to internal bias, the trade-off between morality and law, and the influence of public opinion, and also reveals the idea of uncertainty. Figure 2 shows the main

ANALYSIS ON UNCERTAINTIES IN JUDICIAL DECISION BASED ON COGNITIVE PSYCHOLOGY

2020, Vol. XXIX, N°1,1016-1021

REVISTA ARGENTINA

DE CLÍNICA PSICOLÓGICA

1018

manifestation of the uncertainty in terms of fact reasoning, legal reasoning, and decision reasoning in judicial decision. Among them, the uncertainty of fact reasoning includes that of causal connection and factual reasoni ng; the uncertainty of legal reasoning includes that of legal norms and legal interpretation; the uncertainty of decision reasoning includes that of statutory law and judge-made law, etc. Figure 3 shows the causes of uncertainty in judicial decisions, including the uncertainty of natural language, the limitations of legislation, the non - self-sufficiency of the legal system, and the subjective factors of judges.

Psychological analysis of uncertainty thought

The psychological analysis of uncertainty thought mainly includes the acquisition of psychological knowledge, the establishment of

psychological ideals, the cultivation of psychological emotions, the occurrence of psychological will and the establishment o f psychological beliefs. Due to the interaction of life experience and sociality, people will gradually integrate effective information into their existing psychological cognition and assimilate this information. The formation of uncertainty thoughts is related to human maturity, social activities and judicial activities. Among them, social activities have a more significant influence, because people's judicial psychological cognition depends on social interaction. From the perspective of cognitive psychology, the idea of uncertainty originates from the process of people pursuing justice, maintaining order and realizing the rule of law. Through long-term judicial research, the certainty of pursuing judicial decisions is mainly to satisfy the rules of conduct of all parties.

Figure 2. The main manifestation of the thought of uncertainty in judicial decision

The main performance of

the uncertainty thought

of judicial decision

Uncertainty of fact

reasoning

Uncertainty of

legal reasoning

Uncertainty in

decision reasoning

Philosophical questioning of

uncertainty in fact reasoning

Judicial analysis of uncertainty

in fact reasoning

Uncertainty of legal norms

Uncertainty of legal

interpretation

Uncertainty of decision

reasoning in statutory law

Uncertainty of decision

reasoning in judgment method

Diversity of the meaning of facts

Causal probability

Non-reproducibility of objective facts

The tailorability of normative facts

Legal doubts

Legal loopholes

Creativity of legal interpretation

Openness of legal interpretation

Figure 3. The causes of uncertainty thought in judicial decision

The causes of

uncertainty thought in

judicial decision

Uncertainty of natural language

Limitations of legislation

Insufficiency of the legal system

Subjective factors of judicial officers

YONGCHAO LI

2020, Vol. XXIX, N°1,1016-1021

REVISTA ARGENTINA

DE CLÍNICA PSICOLÓGICA

1019

SIGNIFICANCE AND COUNTERMEASURES OF

IDEOLOGICAL UNCERTAINTY IN JUDICIAL DECISION

Theoretical analysis of judicial decisions and significance of ideological uncertainty

A complete judicial decision includes not only statutory judicial interpretations, but also interpretations given in the application of law and of the judge's authority. Current legislation and judicature are independent systems, and uncertainties arisen in the judicial process is placed above the will of the legislator. Ta ble 2 lists the current choice and reasons for rural dispute resolution; if people want to spend less time, they will choose cadre mediation to solve privately; if they want to spend the least, most will choose cadre mediation; if they prefer a more satisfactory solution, judicial decisions will be more effective through lawsuits. The judicial decision process must have clear objectives, strong feasibility and legal interpretation applicability. Figure 4 shows the logical diagram of the judicial decision behaviour management theory. If judicial decision -making behaviour management needs to follow the deductive logic from value to fact, the intrinsic logical relationship between legal value research and judicial form research cannot be ignored. Figure 5 shows the role of legal facts in judicial decisions. The judicial decision process needs to support facts by evidence; legal facts are formed through legal evaluation and legal tailoring, and then filed as the factual basis and premise of judicial decision. A complete judicial decision process also includes repetitive confirmation of the case facts and the outcome of the ruling based on legal normative logic, where repetitive confirmation is the last link in the decision reasoning.

Table 2. Choice and reasons of dispute resolution ways in rural areas

Lawsuit Cadre mediation

Compounding in private

Minimum time-

consuming

9.39% 45.23% 45.23%

Spend least 9.12% 51.92% 37.06% Successful

solution 48.29% 34.84% 17.97%

Figure 4. Schematic diagram of the theoretical management of judicial adjudication

Judicial

justice

Judicial

decision

behavior

Social needs

Judicial adjudication

Judging mechanism

Judge Motivation

Judge competence

Decision-making process

Influencing factor

Rule control

Conflict of responsibility

Judge experience

Social expectations

Judicial

management

measures

Compliance with applicable rules of law

Human resource management of judges

Judicial macro-management system

Court internal management system

Figure 5. The role of legal facts in judicial adjudication

Influence and countermeasure of

uncertainty in judicial decisions The judicial decision process is a logical

inference process, but this process is incomplete, thereby resulting in uncertainty. China's legislative institutions and judicial organs have different powers. The law can only be interpreted by the legislature, which leads to the fact that the judicial organs do not have universal inevitability in legal norms. Moreover, the facts of the case are probabilistic, so, for many times there exists no reasoning of an implication relationship between the preconditions and conclusions, seriously affecting the fairness and justice of the judiciary. The uncertainty of judicial decisions is relative and objective. Just because of the existence of

ANALYSIS ON UNCERTAINTIES IN JUDICIAL DECISION BASED ON COGNITIVE PSYCHOLOGY

2020, Vol. XXIX, N°1,1016-1021

REVISTA ARGENTINA

DE CLÍNICA PSICOLÓGICA

1020

relative situations or the amplification of objective conditions, its negative impact on the judicial system is very large, which will definitely bring unreasonable and unacceptable judgment to the parties, and make them suffer the loss of material, spirit, and even life. Figure 6 shows the legal normative process of judicial process. Clear rules are selected through the legal norm system and legal rules, and used to explain the rule of legal interpretation in the broad sense and select appropriate legal principles.

The uncertainty of judicial decisions should be reduced from the aspects of legislation, legal application procedures, judges' personal emotions and qualities, and publicity and education. Legislation should be forward - looking; laws and regulations should be formulated and updated in a timely manner to adapt to the changing realities of society. Furthermore, legislation should be as specific and operational as possible. The legal procedures should be initiated to limit the will of the judges and reduce their subjective psychology in the judicial decision process. From the perspective of subjective cognitive psychology, the judicial decision is the discretion of the judge; although the whole process is based on law and facts, ultimately it depends on the psychological role of the judges. Therefore, more stringent reforms must be carried out in the election and appointment system and procedures of the judges, and external supervision and institutional constraints on the judges should be strengthened so that the discretion of the judges is within the scope permitted by law and procedures. Strengthening the publicity of the legal and judicial process is an important measure to improve the judicial and legal cognition of the whole people. Only by enabling the whole people to understand the law and obey the law can the number of judicial decisions be greatly reduced, thereby reducing the uncertainty of judicial decisions.

Figure 6. The legal process of judicial adjudication

Legal

norm

system

Legal

rule

Clear

rules

A broad

interpretation

of the law

after the rule

Legal

principles

Legal norm proposition

CONCLUSIONS

Based on the theory of cognitive psychology, this paper explores the uncertainty in the process of judicial decision and gives corresponding countermeasures. The specific conclusions are as follows:

(1) Judicial lectures, seminars, reading clubs, and legal columns have all become widely used forms of law so that people are always in contact with the law and obey the law, which greatly promotes the cultivation of people's judicial cognition;

(2) The uncertainty in judicial decision is mainly reflected in the uncertainty of fact reasoning, the uncertainty of legal reasoning and the uncertainty of decision reasoning. Its causes include the uncertainty of natural language, the limitations of legislation, the non -self-sufficiency of the legal system, and the subjective factors of the judge;

(3) The idea of uncertainty arising in the judicial process is placed above the will of the legislator. The management of judicial decision - making must follow the deductive logic from value to fact, and the judicial decision process needs to support the facts by evidence; through legal evaluation and legal tailoring, legal facts are formed and then filed a as the factual basis and premise of judicial decisions;

(4) The uncertainty of judicial judgment is relative and objective. Measures should be formulated from the aspects of legislation, legal application procedures, judges' personal emotions and qualities, publicity and education, etc., to reduce the emergence of the uncertainty in judicial decisions.

Acknowledgement

This paper is supported by the National Social Science Fund of China: The theory of interior administrative act’s exteriorization , No. 14CFX011.

REFERENCES

Bishop, P. (2017). Salmon fishing in the Severn: judicial deference to regulatory judgments based on scientific assessments. Environmental Law Review, 19(3), 201-209.

Brinkman, J. T. (2017). “Thinking like a lawyer” in an uncertain world: The politics of climate, law and

YONGCHAO LI

2020, Vol. XXIX, N°1,1016-1021

REVISTA ARGENTINA

DE CLÍNICA PSICOLÓGICA

1021

risk governance in the united states. Energy Research & Social Science, 34, 104-121.

Cunliffe, E. (2014). Judging, fast and slow: using decision-making theory to explore judicial fact determination. The International Journal of Evidence & Proof, 18(2), 139-180.

Davies, A. (2012). State liability for judicial decisions in European union and international law. International and Comparative Law Quarterly, 61(3), 585-611.

Emma, M. N. J., & Mcnaught, A. (2016). Exploring decision making around therapist self-disclosure in cognitive behavioural therapy. Australian Psychologist, 53(1), 33-39.

Flanagan, B., & Ahern, S. (2011). Judicial decision- making and transnational law: A survey of common law supreme court judges. International and Comparative Law Quarterly, 60(1), 1-28.

Foxall, G. R. (2004). What judges maximize: toward an economic psychology of the judicial utility function. Liverpool Law Review, 25(3), 177-194.

Rand, E. J. (2015). Fear the frill: Ruth Bader Ginsburg and the uncertain futurity of feminist judicial dissent. Quarterly Journal of Speech, 101(1), 72- 84.

Shapiro, D. L., Mixon, L. K., Jackson, M., & Shook, J. (2015). Psychological expert witness testimony and judicial decision making trends. International Journal of Law and Psychiatry, 42- 43, 149-153.

Soboleva, A. (2013). Use and misuse of language in judicial decision-making: Russian experience. International Journal for the Semiotics of Law- Revue internationale de Sémiotique juridique, 26(3), 673-692.

Stone, A. (2010). Democratic objections to structural judicial review and the judicial role in constitutional law. University of Toronto Law Journal, 60(1), 109-135.

Vlek, C. (2010). Judicious management of uncertain risks: ii. simple rules and more intricate models for precautionary decision-making. Journal of Risk Research,13(4), 545-569.

Reproduced with permission of copyright owner. Further reproduction prohibited without permission.