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Judicial decision-making and neurobiology: the role of emotion and the ventromedial cortex in deliberation and reasoning

Judicial decision-making and neurobiology: the role of emotion and the ventromedial cortex in... It is been said that ‘traditional legal theory either presumes that judges have no operative emotions about litigants and issues before them, or mandates that any such emotions be actively suppressed, reflecting an untested, commonsense wisdom that emotion distorts the legal reasoning demanded by the judicial role’. In contrast to this presumption however, recent neuroscience research has demonstrated that emotion is likely to play a key facilitative role in legal decision-making via participation of the ventromedial cortex; in particular, areas of law where personal, social, and moral circumstances are considered, areas that include criminal law and sentencing. The leading High Court decision reflecting upon deliberation and reasoning in sentencing is Markarian v The Queen. This paper will evaluate the decision-making processes proposed by the judges in that decision, and potential alternative approaches, in the light of what is possible neurobiologically. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Australian Journal of Forensic Sciences Taylor & Francis

Judicial decision-making and neurobiology: the role of emotion and the ventromedial cortex in deliberation and reasoning

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References (3)

Publisher
Taylor & Francis
Copyright
Copyright Taylor & Francis Group, LLC
ISSN
1834-562X
eISSN
0045-0618
DOI
10.1080/00450610903391457
Publisher site
See Article on Publisher Site

Abstract

It is been said that ‘traditional legal theory either presumes that judges have no operative emotions about litigants and issues before them, or mandates that any such emotions be actively suppressed, reflecting an untested, commonsense wisdom that emotion distorts the legal reasoning demanded by the judicial role’. In contrast to this presumption however, recent neuroscience research has demonstrated that emotion is likely to play a key facilitative role in legal decision-making via participation of the ventromedial cortex; in particular, areas of law where personal, social, and moral circumstances are considered, areas that include criminal law and sentencing. The leading High Court decision reflecting upon deliberation and reasoning in sentencing is Markarian v The Queen. This paper will evaluate the decision-making processes proposed by the judges in that decision, and potential alternative approaches, in the light of what is possible neurobiologically.

Journal

Australian Journal of Forensic SciencesTaylor & Francis

Published: Mar 1, 2010

Keywords: decision-making; judges; legal; emotion

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