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

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.

Keywords:

• decision-making
• judges
• legal
• emotion

Acknowledgement

This paper was presented at the conference: ‘Judicial Reasoning: Art or Science?’, jointly hosted by the National Judicial College of Australia, the ANU College of Law & the Australian Academy of Forensic Science (Canberra, 7–8 February 2009). The paper is based upon a combination of three papers already published by the authors, and any references, neurobiological and otherwise, may be found in those papers: Judicial neurobiology, Markarian synthesis and emotion: How can the human brain make sentencing decisions? Criminal Law Journal. 2007;31:75–90; Brains, biology, and socio-economic disadvantage in sentencing: Implications for the politics of moral culpability. Criminal Law Journal. 2008;32:167–179; The neurobiology of judicial decision-making: Indigenous Australians, Native Title, and the Australian High Court. 2009;20:112–123.