Resumo

CACERES, Enrique  e  MONTEMAYOR, Carlos. Steps Towards a Cognitive Naturalization in Legal Philosophy (Conscious and Unconscious Indexicality: a Review of Normative Efficacy). Probl. anu. filos. teor. derecho [online]. 2016, n.10, pp.137-165. ISSN 2448-7937.

In science and philosophy it is common that their respective communities devote exclusively, for long periods of time, to a certain problem or set of problems when guided by a particular methodological approach.

Same situation is present in legal philosophy. A long time ago, a dominant paradigm in legal methodology had led the discussion to a speculative conceptual analysis. A very illustrative example of this is the discussion about the problematic relation between law and morality.

In our paper we take a different starting point and claim that an adequate understanding of legal efficacy is fundamental to address any issue regarding the concept of law. Crucial questions become clearer when the efficacy of a legal system is explained, including the relation between law and morality. Specifically, we are interested in analyzing the following questions: in what sense is the law responsible for regulating society if the vast majority of its subjects do not know the rules of the system? And in what way does the law determine the decisions of legal institutions if such specification is always subject to an open debate?

We are not only shifting the focus of analysis to a set of problems that cannot be adequately understood by speculative analysis alone. We also argue for a change in methodology by taking a naturalistic approach to legal philosophy that engages with the most important findings in cognitive science in a meaningful way. In doing so, we examine what we call the "cognitive idealizations" that shape the intuitions of ordinary people and, to a large extent, of legal philosophers. The common denominator of these intuitions is a systematic overestimation of the role of conscious voluntary control in guiding the agents that are governed by the law. The fact that such conscious effortful control is one of the most salient targets of experimental criticism in recent cognitive science makes us consider alternative routes to approach the problem of legal efficacy, including work on situationism, indexicality, and Kahneman's distinction between systems 1 and 2. We believe that this theoretical reorientation towards agents and their cognitive capacities will open the path to new insights in legal philosophy, particularly with respect to the widely assumed thesis that the efficacy of legal norms requires explicit conscious reflection about norms and their consequences. An important conclusion of our arguments is that there must be a necessary cognitive relation between moral and legal reasoning.

Palavras-chave : Jurisprudential Methodology; Cognitive Turn; Normative Indexicality; Legal Efficacy; Naturalizing Jurisprudence.

        · resumo em Espanhol     · texto em Espanhol     · Espanhol ( pdf )