Revista Argentina de Clínica Psicológica 2020, Vol. XXIX, N°2, 464-469
DOI: 10.24205/03276716.2020.264 464
L
EGALITY
A
NALYSIS OF
C
IVIL
L
ITIGATION
J
UDGMENT
B
ASED ON
C
OGNITIVE
N
EUROSCIENCE AND
C
OGNITIVE
P
SYCHOLOGY
Qiming Lou
Abstract
Drawing on cognitive neuroscience and cognitive psychology, this paper aims to disclose the influence of psychological factors (e.g. ethical principle) on judicial notice stemmed from civil actions. First, the author introduced the background knowledge of neuroscience, psychology and jurisprudence. Then, the positioning of judicial notice in the civil action system was explained, and the purpose of judicial notice in civil lawsuits was defined. After that, the role of cognitive science in the curse of civil litigation judgement was analyzed in details. The results show that cognitive psychology is an important evidence for and complement to the legality of litigation judgments; the cross-integration of various disciplines is conducive to providing a comprehensive cognition of the legality of litigation judgments. The research provides rational qualitative results on the legitimacy of civil litigation judgments, which help to promote the fairness and legitimacy of civil litigation judgments in China.
Key words: Cognitive Neuroscience, Cognitive Psychology, Civil Litigation Judgment, Legality. Received: 03-02-19 | Accepted: 17-08-19
INTRODUCTION
Legality of litigation judgment is a basic element that matters the construction of judicial and social legal systems in China. Judges often base the adjudication on the fact statement, reminiscences, inference, treatment, and judgment by laws and statutes. However, influenced by cognitive and psychological factors, judge, as a natural person, will be subject to the priori conditions and the like in the curse of the litigation judgment, which will inevitably spoil the sentence legitimacy (Vessio, 2010). In order to ensure judgement legitimacy, trial neutrality and social justice, avoid the risk possibly posed by judicial verdict, the integration of neuroscience, psychology, logic and other disciplines with judicial notice has been a hot topic in academic circles (Drumbl, 2013).
1Jiyang college of Zhejiang A&F University, Zhuji 311800,
China. 2ZheJiang Yongda Law Firm, Zhuji 311800, China.
E-Mail: [email protected]
The integration of neuroscience into laws has been widely applied in domestic judicial notice and litigation judgments: a report conducted by American law professors shows that cognitive neurology has been introduced as evidence samples in 722 criminal cases from 2008 to 2014; cases where the functional Magnetic Resonance Imaging (fMRI), quantitative Electroencephalography (qEEG) and other neurological technologies are introduced to assist judges in judicial decisions have yielded satisfactory effecs (Adolphs, 2003). By far, there have been very mature system for laws to integrate cognitive psychology. In view of the fact that the psychology plays a key role in judicial judgment and notice, China has enacted legal rules for guideline in this regard (Tooby, Cosmides, & Barrett, 2003). Judges can dig out the inspirational cognitive resources in favor of judicial judgement from the psychological cognition perspective to serve their trial jobs. From the path of psychology, and by means of neuroscience, a new sight will be opened to have insight into decision process of layfolk, judges,
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jurors and attorney, and concerns the roles of so-called morality and emotions in this process (Sinnott-Armstrong, 2011).
The focus of this paper is on what influence the psychological factors such as ethical principle, etc., play on the judicial notice stemmed from civil actions in the sense of the cognitive neuroscience and psychology. The study sheds new light on the integration of moral convictions of civil litigation with cognitive neuroscience and psychology. In the last section, legal reasoning and judgment can be reached against the cases (Wegmann, 2012). The first part introduces the interdisciplinary backgrounds of the neuroscience, psychology and jurisprudence; then expounds the positioning of judicial notice in the civil action system, and defines the purpose of judicial notice in civil lawsuits. In the end, it is concluded what role the cognitive science plays in the civil litigation judgment curse (Jobe, 2003). Based on neuroscience and psychology, this study analyzes the legitimacy of civil litigation judgments qualitatively and rationally, which can avail us to guide the fairness and legitimacy of civil litigation judgments in China.
COGNITIVE NEUROSCIENCE, PSYCHOLOGY AND LAW
Overview of law and cognitive neurology
Law with neuroscience, referred to as neurolaw, is a cross-disciplinary science emerged in the United States in the 1990s. Influenced by the consciousness of the legal society, it has been fully developed in Western countries. According to the statistics, from 1984 to 2014, more than 1,000 fruits born in the neurolaw were published, among which, more than half emerged after 2010. The above fact suffices to show how the concern and R&D potential of this hotspot is (Busey, & Loftus, 2007).
Neurolaw has infiltrated into the practice process of judicial notice, refer to Fig. 1 for the samples of neurological evidences provided in recent US criminal cases.
As shown in Figure 1, the neurocognitive science technologies fMRI and EGGs used to test the brain neural activities of suspects as sample evidences have played a certain part in assisting US judgements.
Figure 1
.
The increase of the sample
evidence quantity with the years
There are four application areas of neurolaw in the process of judicial cognition:
Evidence. Neuroscience and EEGs are used to
test the suspect’s brain ripple to obtain lie
detection evidence, and iMRI technology can also help judge the credibility of eyewitnesses' testimony.
Criminal law. The consensus reached by neurolaw in the judicial and academic circles can assist referees and imputation decisions.
Civil law. Neurolaw can be involved in the patient behavior, the consequences of injury in civil cases, and the treatment, cessation of vegetative human.
Legal decision. the impact of cognitive neuroscience based on moral syntax on the cognitions of judges, plaintiffs, defendants, juries, etc., of decision process.
Congnitive psychology and law
Cognitive psychology is an advanced psychological process in which inherent treatment of sensory information and trouble elimination are regarded as cognitive model to study the human beings. This internal journey is a combination of perception, attention, memory, knowledge representation, language, thinking, reasoning, creativity and other factors, including the collection, input, coding, storage, transformation, simplicity, extraction and use of information data (Forsterlee, Kent, & Horowitz, 2010).
LEGALITY ANALYSIS OF CIVIL LITIGATION JUDGMENT BASED ON COGNITIVE NEUROSCIENCE AND COGNITIVE PSYCHOLOGY 466
Figure 2
.
Intuitive processing system
Perceptual stimuli (information input)
Information storage, translation, extraction
Preliminary settings (information output)
Explicit behavior
Oblivion
Direct processing channel
Although the judicial judgment seems complex, it is ultimately associated with the judge's referee thought reflected in the cognitive process of lawsuits. In the judicial activities of the cognitive process, challenged by the “public opinion”, “litigation explosion” and “frequent occurrence of misjudged and suspected cases”,
the sentence of lawsuit will inevitably produce an error. Cognitive psychology aims to pitch in the judicial context from a rational perspective (Sevelka, 2003).
Cognitive psychology generally believes that the main process of judicial notice is to make judicial assumptions which mainly depend on the intuitive processing systems, see Fig. 2 for its processing process:
After making judicial assumptions, the judges psychologically recognize the judicial process based on ideal and realistic situational cognition, and finally conclude a sentence.
JUDICIAL NOTICE AND CIVIL ACTION
After expounding the application of cognitive neuroscience and psychology in the realm of jurisprudence, the focus moves on the relationship between judicial notice process and civil action.
Positioning of judicial notice in the civil lawsuit system
Ontology of judicial cognition
Judicial notice in civil lawsuits refers to cognition or knowledge on trial. It is the coupling
deduction process that involves judges’ pre -existing consciousness in the brain in the case trials, and also the cognitive outcome concluded by psychological process combining priori consciousness. According to the Black Law Dictionary, the judicial notice in civil lawsuits is
interpreted in this way: “The judicial notice in
civil lawsuits means that, for the convenience of lawsuits, the judge does not require proof of the party, that is, for recognizing a notorious and indisputable fact, he has the right to recognize such facts, just like the fact that water will freeze at zero degrees Celsius (Redelmeier, 1991).
Transcendental consciousness, if available, plays an important role in the process of judicial notice in civil lawsuits. Although the judges are required to hold the values of neutrality and judicial justice as accepted in the legal education and professional ethics cultivation, the prior consciousness in litigation judgment process does affect the sentence of lawsuits deliberately or unintentionally (Redelmeier, 2005).
Experience and rational dimension of judicial notice
Using the paradigm of Western philosophy, judicial notice in civil lawsuits can be divided into empiricism and idealism.
Idealism: it stresses the rational reliability and confirms the important role of reason in the legislation. Idealists attempt to use the numbers to amalgamate the world and calibrate the degree of consent of people against the cognition. However, the probability determinacy of idealism has time and space restrictions, and
“that everyone knows” and “no proof is required” in local areas may not be recognized in
other areas.
Empiricism: it underlines a pragmatic notion and believes that all knowledge comes from experience. On the one hand, it is a static summary of human wisdom crystallizations, on the other hand, it is a dynamic precipitation of memories accumulated over time. Experience does not interpret out of truth and reality, but a reliable choice of truth.
Civil lawsuit is a fusion of idealism and empiricism, and it is impossible to adopt a dimension in the cognitive process alone.
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Instead, it is an information treatment process ultimately available from input to output with unceasing evolution of ideals and experience of civil lawsuits (Mcadams & Bigand, 1994).
Purpose of judicial notice in civil lawsuit
The justice sense is the purpose of judicial notice
The ultimate purpose of judicial notice in civil lawsuits is to make the justice sense reflect in the actions. As a kind of value, justice takes up a core position in the socialist legal society. It is not only a contractual relationship between individuals, but also a reflection of the social distribution justice. From the perspectives of short-term and long-term memories, the way the justice is reached is shown in Table 1.
Table 1.
The sense of justice in the cognitive
model of the parties
Short-term
memory Long-term memory
Overall sense of Justice
Prompt judgement of judicial system
and legal profession group
Observation and stereotype of judicial
system and legal occupational groups
in daily life
Overall sense of Justice
Immediate judgement of specific judicial
workers and specific courts.
Observation and stereotype of specific
judicial workers and specific courts in daily
life
The purpose of judicial notice in civil lawsuit is to guide the lawsuit itself, and also subject to relevant laws and regulations. In term of the psychological cognition, the justice sense will be influenced by macroscopic conditions such as judicial corruption, vicious social hotspots, etc., and also by microscopic factors such as judicial officials' improper behaviors, which will lead to the lack of justice. Long-term sense of justice requires backing from the society and the
government, while short-term sense of justice requires serious resumption of judicial staff (Poulton, 1982).
Empirical Analysis of how judicial notice influences the justice
Based on the respect for the traditional jurisprudential countermoves, the factors that may influence the sense of justice are taken as entry point to strengthen or rouse the parties' cognition of sense of justice.
(1) Questionnaire object and design
A total of 250 residents were randomly chosen as test subjects in the Changsha area of Hunan Province. To grasp how the cognitive psychology of the litigants changes, as shown in Fig. 3, the survey questionnaire is mainly designed in four respects: litigation expectation, trial prejudgment, judicial trust and environmental impact.
(2) Survey results
According to the questionnaire survey, the four factors designed in the questionnaire have contributed to litigant's psychological behaviors: 22.62% to judicial expectation, 13.63% to trial pre-judgment, 9.39% to organizational trust, and 7.71% to environmental impact. Although there are certain deviations in the weights of the four factors, according to the survey, these four factors positively influence the arousing of justice sense on judicial notice, and are indispensable. For judicial expectation and trial pre-judgment, just as the parties expect in the civil adjudication, the judge can satisfy their expectation by controlling the trial process; for judicial trust, referred to the trust of the parties in the sentence of judges and the court, it will be enhanced by improving the judges' behaviors and attitudes; environmental perception reflects the ritual sense by court's environment layout and architectural style. The sense of judiciary justice can be improved by comprehensively grasping the above four factors.
Figure 3
.
The basic structure of the litigant psychology of the parties
Litigant litigant psychology
LEGALITY ANALYSIS OF CIVIL LITIGATION JUDGMENT BASED ON COGNITIVE NEUROSCIENCE AND COGNITIVE PSYCHOLOGY 468
Influence of judicial notice on referee judgment in civil lawsuits
“No proof is required”
For "no proof" of well-known things, the cognitive content needs to be reasoned in the process of judicial notice, in order to improve the judicial notice logically and provide an objective basis. In the process of referee judgment in civil lawsuit, life experience and social common sense should be involved. In addition to the evidence reference of the parties, the judge needs to construct an appropriate story model for psychological cognition for data search and analysis in the process of judicial notice.
Judicial notice enhances the reason for referee judgment
Judicial notice, as an adherometer of judge in the story model reasoning process in the judgment, can disclose facts of the litigation proceeding to a certain extent, improve the persuasiveness of the sentence results and the party's sense of justice for court verdicts. In the civil lawsuits, the grasp of judicial notice rule and the system construction should be concerned to try to "convince people by reasoning" in judgement process
Reasoning process of judicial notice
Reasoning is to appeal for the result of litigation judgement to exoteric world. The purpose of sentencing civil pleas is to hope that good judgment will give the public a satisfactory result. As the judges hold different levels of knowledge and psychological cognition, they will return a verdict different from each other. In this process, the mental disposition of the judges and the positive information will influence the reasoning.
The reasoning content of judicial notice in civil lawsuit mainly includes three parts: experience, laws, and judgment document, among which, the last one reflects the judgment results, but the parties are given the opportunity to make statements and rebuttals. Judges express full respect for the rights of the parties throughout the process.
INTERACTION AND INSPIRATION OF
JUDICIAL JUDGMENT IN CIVIL LAWSUITS WITH COGNITIVE NEUROSCIENCE AND PSYCHOLOGY
As described in the previous sections, there
are influence and function of neuroscience and psychology on judicial decisions. This section focuses on the winding up the inspiration and influence of the two in civil lawsuits on the legality of litigation judgments.
The legality of civil litigation judgment is to seek a technical balance between law and fact, and judicial notice can supplement the sentence of the judge with the fact of civil pleas. With the supplement of the interdisciplinary of cognitive neuroscience and psychology, the story model reasoning and deduction of judges can be reached to enhance the coherence of judicial notice.
Psychological cognition model is a bridge built between law and facts for judges. Priori experience can supplement psychological cognition for judges to deprive resources for inspiration and psychological cognition. The
Regulations on Guidance of Preceding Cases
issued by China clarifies the application and reference of guiding cases. Inspiration or direct reference can be available from similar cases in the process of judicial proceedings.
Judge is not only the ultimate individual who decides the sentence of civil lawsuits, but also a subject of the legality of the civil adjudication. Judging from the memory and learning theories of cognitive psychology, judges are the last security guards who can ensure the legality of civil lawsuits. The mastery of the basic knowledge of cognitive neuroscience and psychology can help get familiarity with the relationship between civil litigation and judicial notice in all ways, and reason the cases based on the intuition on personal experience. The judge will be able to pledge the logic, globality and sufficiency of referee reasoning with cohesive cognition of various types of disciplines that influence judicial notice. The more the litigation judgment causes can be accepted by the public, the better the legitimacy of the sentence, and the more independent the judicature against civil lawsuits.
CONCLUSION
Litigation judgment with judicial notice is a proposition of evidence science. Multidisciplinary integration such as cognitive neuroscience and psychology can support the rationality and logicality of litigation judgment. There are less studies focusing on the neuroscience and cognitive psychology in
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lawsuit settlements. In view of this, based on the integration of neuroscience, cognitive psychology and laws, the study analyzes the interactive relationship of civil action with judicial notice. The last part concludes the effect of interdisciplinary integration between the neuroscience and cognitive psychology in the civil lawsuit judgment on the verdict legitimacy. The study has the following significance:
By means of the integration with cognitive neuroscience and psychology, this paper studies the positioning, the purpose and the significance of judicial notice in the process of civil action.
It is demonstrated that cognitive psychology is an important evidence for and an effective complement to the legality of litigation judgments.
Study shows that the cross-integration of various disciplines is conducive to providing a comprehensive cognition of the legality of litigation judgments. The psychological and neurocognition of judges help improve reasoning faculties against the litigation judgments from a global perspective.
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