Michele Ubertone

This article is a response to Ronald J. Allen's “Reflections on Complexity, Evidence, and Law.” I begin by analyzing three key concepts that Allen employs in his argument: reductionism, emergence, and complexity. On the basis of this analysis, I question Allen's criticism of the reductionist approach that, according to him, legal scholarship has traditionally taken to the study of law. There is a neutral sense of the word “reductionism” according to which most disciplines and sciences can be considered reductionist, and a pejorative sense according to which reductionism is epistemically objectionable. I try to distinguish these two senses, arguing that while legal scholarship is clearly reductionist in the first sense, it is not at all clear that it is also reductionist in the second sense. I conclude by putting some questions to Allen about the practical advantages that the study of law may gain by adopting methods and concepts drawn from complexity theory.

Humans have this extraordinary cognitive ability: They imagine inexistent objects, they treat them as if they were real, and by doing so they make them real. They thus give rise to a shared institutional reality that enables them to cooperate in ways that would be impossible otherwise. In this paper, we would like to revisit the account that HLA Hart gives of the practice of collective acceptance that makes a legal system possible. We try to provide an explanation of what Hart calls the ‘internal point of view’, on the basis of experiments on institutional concepts, drawing on the paradigm known as ‘embodied cognition’. Experts and non-experts in law rated the role of several cognitive dimensions for a list of words referring to two kinds of abstract concepts (institutional and theoretical/scientific) and two kinds of concrete ones (food and artifact). Institutional concepts were distinguished into pure-institutional (e.g., ‘contract’, ‘state’, ‘property’) and meta-institutional (e.g., ‘norm’, ‘duty’, ‘justice’). The results provide an empirical account of how our way of thinking about institutions changes as we acquire expertise in the legal field, thus shading light on the cognitive underpinnings of the ‘internal point of view’.

Since the beginning of the 1990s, the debate on expert evidence has constantly been growing. This article tries to give two separate contributions to a subsection of this debate, the one related to the alternative between deference and education. First, it contains an attack to the arguments that Ronald Allen and others have given in favor of the thesis according to which experts should perform a merely educational role at trial. Second, it maintains that the question of whether fact finders should ever “defer” to experts or should be allowed to draw on their opinions only if they “understand” them should be clarified by introducing a distinction between two different senses “deference”, which is paralleled by a similar distinction between two senses of “understanding”.