Do Formalist Judges Abide By Their Abstract Principles? A Two‑Country Study in Adjudication
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Experimental jurisprudenceAbstract/concrete paradoxIdentifiability effectJudicialdecision-makingFormalism
Bystranowski, P... [et al.]. Do Formalist Judges Abide By Their Abstract Principles? A Two-Country Study in Adjudication. Int J Semiot Law (2021). [https://doi.org/10.1007/s11196-021-09846-6]
SponsorshipEuropean Research Council (ERC) European Commission 805498; Ministry of Science and Higher Education, Poland 0068/NPRH4/H2b/83/2016
Recent literature in experimental philosophy has postulated the existence of the abstract/concrete paradox (ACP): the tendency to activate inconsistent intuitions (and generate inconsistent judgment) depending on whether a problem to be analyzed is framed in abstract terms or is described as a concrete case. One recent study supports the thesis that this effect influences judicial decision-making, including decision-making by professional judges, in areas such as interpretation of constitutional principles and application of clear-cut rules. Here, following the existing literature in legal theory, we argue that the susceptibility to such an effect might depend on whether decision-makers operate in a legal system characterized by the formalist or particularist approach to legal interpretation, with formalist systems being less susceptible to the effect. To test this hypothesis, we compare the results of experimental studies on ACP run on samples from two countries differing in legal culture: Poland and Brazil. The lack of significant differences between those results (also for professional legal decision-makers) suggests that ACP is a robust effect in the legal context.