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Uncertainty, Religion, and Law | | | Risk is therefore a trivial problem compared to uncertainty as I use it: to describe the decision environments in which one does not know which outcomes are probable, and might not even know which outcomes are possible. Decisions under this kind of uncertainty are a far more difficult problem, and formal decision theory is powerless in these cases (Ellsberg, 1961). When specificity is necessary to avoid ambiguity, I will refer to environmental uncertainty as the quality of environments that proscribe the collection and interpretation of sufficient decision-relevant information. Cognitiveuncertainty, on the other hand, refers to the mental state of the decision-maker—specifically, his lack of sufficient decision-relevant information. Cognitive uncertainty might not be registered by the decision-maker, however; one can have a belief about the probability of an event occurring even if one lacks the information on which to sensibly determine that probability (Posner, 2009). | |
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< | A special subset of environmental uncertainty, which I call social uncertainty, is unpredictability in social environments. Depending on the range of social norms and belief systems followed in a particular community, we may have more or less capacity to predict the behavior of other members of that community. This concept is important in a legal essay because one of the functions of the law is to motivate convergence to a particular set of social norms. | >
> | A special subset of environmental uncertainty, which I call social uncertainty, is unpredictability in social environments. Depending on the range of social norms and belief systems followed in a particular community, we may have more or less capacity to predict the behavior of other members of that community. This concept is important in the present essay because one of the functions of both law and religion is to motivate convergence to a particular set of social norms. | | | Cognitive and social uncertainty, as I use them, are memory-related constructs unrelated to affect. Recognition of uncertainty, however, does generally activate an emotional response. Emotional uncertainty, as used here, is the negative emotional response that most people feel in situations of recognized cognitive uncertainty (Greco & Roger, 2001). In addition to emotional uncertainty, social psychologists have a more nuanced concept called personal uncertainty (van den Bos, 2009), which refers to the cognitive and emotional responses associated with being uncertain about oneself, including one’s self-image, decisions, relationships, and worldview. | | | Differences in the attitudinal disposition toward uncertainty result in different behavioral responses to uncertainty. As will be discussed below, humans have found many creative ways to deal with uncertain environments. Hofstede (2001) uses the term “uncertainty avoidance” to refer to what I call uncertainty aversion, but I use uncertainty avoidance to refer to behaviors undertaken prospectively to avoid potentially uncertain situations and events. Uncertainty reduction, intuitively enough, refers to efforts to reduce existing uncertainty. Both of these strategies are subsumed under a broader term, uncertainty management, which presents the central theme of the essay. | |
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< | With the important terms defined, I now turn to a deeper discussion of uncertainty. Most social psychologists believe that humans have a fundamental desire to feel certain about the world and their place in it (van den Bos, 2009). Under conditions of emotional uncertainty, we lack confidence in our decisions because we cannot predict their outcomes effectively. According to Hofstede (2001), “uncertainty is to risk as anxiety is to fear” (pg. 148); Risk and fear are associated with an identified object, but anxiety and uncertainty are diffuse feelings with no particular target. Emotional uncertainty is a stressful experience for most people, and it is associated with many social and personal factors, including trustworthiness of authorities and institutions, identity issues of inclusion and status, and personal well-being (Feygina & Tyler, 2009). | >
> | With the important terms defined, I now turn to a deeper discussion of uncertainty. Most social psychologists believe that humans have a fundamental desire to feel certain about the world and their place in it (van den Bos, 2009). Under conditions of emotional uncertainty, we lack confidence in our decisions because we cannot predict their outcomes effectively. Emotional uncertainty is a stressful experience for most people, and it is associated with many social and personal factors, including trustworthiness of authorities and institutions, identity issues of inclusion and status, and personal well-being (Feygina & Tyler, 2009). | | | The feeling of emotional uncertainty is a stressful experience for most people. This emotional distress appears to be an intrinsic component of human psychology. Using controlled psychological experiments, Murray et al. (2002, 2005) found that personal uncertainty activates the same “emotional alarm system” that activates in response to learning that close personal relationships are in jeopardy. Eisenberger & Lieberman (2004) argue that this alarm system is evolutionarily adaptive because it increases awareness for social cues, the response to which will prevent further deterioration of one’s social status and perhaps allow reparation of destabilized relationships. These authors do not mention that the emotional distress imposed by the alarm system might itself have an evolutionary function: That is, the stress of social uncertainty prospectively incentivizes prosocial behavior that would reduce the probability of such socially destabilizing events. | | | Uncertainty aversion is often discussed in relation to (and sometimes confused with) the authoritarian personality (Adorno, et al., 1964). The distinction, emphasized by Hofstede (2001), is that uncertainty aversion is associated with an emotional need for the authority of rules, while authoritarianism is associated with an emotional need for the authority of persons (see also Duckitt & Sibley, 2009). In the United States, uncertainty aversion is correlated with authoritarianism (Jost et al., 2007); that correlation is not observed in other cultures, however, indicating that the attitudes are separable (Hofstede, 2001). | |
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< | Hofstede (2001) is most interested in the culture-wide effects of uncertainty aversion, which he defines as “the extent to which the members of a culture feel threatened by uncertain and unknown situations” (pg. 161). For example, uncertainty aversion is associated with cultures that value structure in organizations, institutions, and relationships, with the end being clarity and predictability. Countries with high uncertainty-aversion scores are more conscious of death. Test subjects from countries with high uncertainty aversion report longer duration in feelings of embarrassment in social situations. These measures indicate that individual differences in uncertainty aversion have effects on the broader society. The social forces leading to intercultural variation in uncertainty aversion are currently unknown, but there is some evidence that the orientation of the country’s legal system—whether rule-based or case-based—plays an important role (see Section 3 below). | >
> | Hofstede (2001) is most interested in the culture-wide effects of uncertainty aversion, which he defines as “the extent to which the members of a culture feel threatened by uncertain and unknown situations” (pg. 161). For example, uncertainty aversion is associated with cultures that value structure in organizations, institutions, and relationships, with the end being clarity and predictability. Countries with high uncertainty-aversion scores are more conscious of death. Test subjects from countries with high uncertainty aversion report longer duration in feelings of embarrassment in social situations. These measures indicate that individual differences in uncertainty aversion have effects on the broader society. The social forces leading to intercultural variation in uncertainty aversion are currently unknown, but there is some evidence that the orientation of the country’s legal system—whether rule-based or case-based—plays an important role (see Section 4 below). | | | The social effects of uncertainty aversion are especially pronounced in the socialization process. In countries with high uncertainty aversion, children are taught distinctions between clean/dirty and safe/dangerous at a younger age, and these categories are also more likely to be applied to ethnic groups (Hofstede, 2001: pg. 161-62). There are stronger rule and norm systems, and people are more likely to feel guilty and sinful. Children are taught that the world is hostile and that unknown situations are dangerous. In contrast, countries with low uncertainty aversion are more comfortable with unfamiliar situations, people, and ideas. Moral norms are more flexible, as are social norms for appearance and speech. The one moral norm that low-uncertainty-aversion cultures are more likely to follow is a norm against discrimination based on gender, race, and appearance. | | | Many economists are interested in the effect of cultural uncertainty aversion on a country’s productivity. Huang (2007) found that uncertainty aversion was associated with less trade with geographically distant countries, which reduced economic growth. Huang (2008) found that entrepreneurs exhibit less uncertainty aversion than the average person, and that this had positive economic consequences (see also Licht, 2007). Cultures with less uncertainty aversion are more successful in industries requiring innovation in the face of significant environmental and technological uncertainties. Others are seeking to include notions of uncertainty in models of economic behavior. Easley & O’Hara (2009), for example, show that adding uncertainty aversion to a standard investment model creates an efficiency-enhancing role for legal regulation that did not exist in the standard model. | |
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< | High uncertainty aversion has darker consequences than slower economic growth, however. Hofstede (2001) believes that the friendliness of high-uncertainty-aversion individuals to religious ideology extends to all kinds of ideology: “Dogmatic, intolerant ideological positions are more likely in countries with higher [uncertainty aversion]” (pg. 177). Correspondingly, low-uncertainty-aversion countries should be more pragmatic. Hofstede points to Milgram’s (1974) simulated-electric-shock experiments as evidence of the harmful side of the rule-following behavior associated with uncertainty aversion. “The rules,” comments Hofstede, “protected against the uncertainty of independent judgment” (pg. 147). In a similar vein, Hogg (2005) observes that in cases of extreme personal uncertainty, people tend to choose dogmatic belief systems related to orthodoxy, hierarchy, and extremism. | >
> | High uncertainty aversion has darker consequences than slower economic growth, however. Hofstede (2001) believes that the predisposition of high-uncertainty-aversion individuals for religious ideology extends to all kinds of ideology: “Dogmatic, intolerant ideological positions are more likely in countries with higher [uncertainty aversion]” (pg. 177). Correspondingly, low-uncertainty-aversion countries should be more pragmatic. Hofstede points to Milgram’s (1974) simulated-electric-shock experiments as evidence of the harmful side of the rule-following behavior associated with uncertainty aversion. “The rules,” comments Hofstede, “protected against the uncertainty of independent judgment” (pg. 147). In a similar vein, Hogg (2005) observes that in cases of extreme personal uncertainty, people tend to choose dogmatic belief systems related to orthodoxy, hierarchy, and extremism. | | | Many of the effects of uncertainty aversion, for good or for ill, result from efforts to reduce or otherwise manage uncertainty. Because emotional uncertainty is an aversive experience, people are prospectively motivated to avoid situations, events, or activities that might result in feelings of uncertainty. When these avoidance measures fail, the negative feelings associated with personal uncertainty motivate behavior to reduce it (van den Bos, 2009). Posner (2009) writes that | | | Empirical evidence from the behavioral sciences is also consistent with the view that religion provides an outlet for avoidance of uncertainty. Willer (2009) ran an experiment in which he asked test subjects to write short essays, half writing about watching television and the other half writing about death. After the essay, subjects answered a series of survey questions about their religious beliefs. Subjects in the death treatment reported significantly higher belief in the afterlife and significantly higher belief in God. Willer interprets this as evidence of motivated reasoning in religiosity, and specifically motivation by fear of death. We might also interpret the result as evidence of emotional uncertainty associated with death, however. Supporting this latter interpretation is the study reported in vas den Bos et al. (2006), which found that low tolerance for uncertainty was associated with angrier responses to antireligious arguments by religious test subjects. Being primed for uncertainty and being more religious were associated with more intensely emotional responses. | |
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< | Also supportive is the meta-analysis of 34 studies by Hackney & Sanders (2003) finding that, generally speaking, religiosity has a small but significant salutary relationship with mental health. Importantly, this correlation is sensitive to the meaning we give to “religiosity.” If by religiosity we mean only involvement in religious organizations, the salutary effect is negligible. If by religiosity we mean a measure of ideological attachment to a religious belief system, we find a significantly stronger association with mental health. Emotional devotion to a supernatural entity, meanwhile, has the strongest positive correlation with mental health. The authors comment that these findings are consistent with a theory of religion as uncertainty-management device—specifically, that religion “shields” the individual from existential anxiety and enables the individual to achieve self-esteem and (presumably) life satisfaction through the knowledge that one is a valuable member of a meaningful universe” (pg. 51). Merely engaging in religious ritual (involvement in church) is not sufficient to reduce uncertainty—that requires sincere internalization of the emotional and/or cognitive commitments associated with religion. The fact that emotional commitment is stronger than cognitive commitment in improving mental health is consistent with van den Bos’s (2009) view that emotional uncertainty plays a more important role than cognitive uncertainty in worldview defense and system justification. | >
> | Also supportive is the meta-analysis of 34 studies by Hackney & Sanders (2003) finding that, generally speaking, religiosity has a small but significant salutary relationship with mental health. Importantly, this correlation is sensitive to the meaning we give to “religiosity.” If by religiosity we mean only involvement in religious organizations, the salutary effect is negligible. If by religiosity we mean a measure of ideological attachment to a religious belief system, we find a significantly stronger association with mental health. Emotional devotion to a supernatural entity, meanwhile, has the strongest positive correlation with mental health. The authors comment that these findings are consistent with a theory of religion as uncertainty-management device—specifically, that religion “shields the individual from existential anxiety and enables the individual to achieve self-esteem and (presumably) life satisfaction through the knowledge that one is a valuable member of a meaningful universe” (pg. 51). Merely engaging in religious ritual (involvement in church) is not sufficient to reduce uncertainty—that requires sincere internalization of the emotional and/or cognitive commitments associated with religion. The fact that emotional commitment is stronger than cognitive commitment in improving mental health is consistent with van den Bos’s (2009) view that emotional uncertainty plays a more important role than cognitive uncertainty in worldview defense and system justification. | | | The mental-health studies prove nothing about causation, however: Mental health might facilitate religious devotion, rather than vice versa. Correspondingly, people with low mental health might be more likely to seek involvement in religious organizations, thereby bringing the mental-health average down for churchgoers relative to non-churchgoers (even if their mental health would be even worse without religious involvement). This last point is important in the context of understanding religion as an uncertainty-reduction strategy, rather than as an uncertainty-aversion indicator. Religion provides many other benefits besides uncertainty reduction, so we can’t determine with confidence whether religious people are doing it for uncertainty-reduction or other reasons. Moreover, uncertainty-reduction is not the conscious goal of most religious adherents: It’s not the case that emotionally uncertain people actively seek religion; people attend church for other reasons, but it makes emotionally uncertain people feel better about themselves. So they keep attending. These individuals don’t recognize this positive feeling as resulting from reduction in uncertainty, so we can’t measure the phenomenon by survey questioning. We must infer it from measurements of religiosity and emotional uncertainty, which would require, at minimum, a longitudinal study of the effects of religious activities on emotional uncertainty across extended time periods (see also Francis, 2001; Kroll et al., 2007). | | | A topic that has received much theoretical investigation but less empirical investigation is the relationship of law to uncertainty management. This section surveys some of the existing literature on that relationship, which analyzes three important ways that law relates to uncertainty. First, as indicated by Hofstede (2001), law serves to reduce uncertainty in social environments by constraining the behavior of other agents. Second, the effectiveness of law in constraining behavior can be undermined by widespread uncertainty in its legitimacy. This legitimacy rests, in part, on the ability of courts to appear impartial. But judges themselves, as emphasized by Posner (2008), face “radical uncertainty” when making decisions, both in terms of cognitive uncertainty about factual evidence and emotional uncertainty about the prudence of their substantive judgments. The efforts by judges and other legal actors to manage these uncertainties explains much of the otherwise puzzling qualities of the modern legal system. | |
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< | As noted, law serves the purpose of reducing uncertainty about the behaviors of other members of society by motivating convergence to a collection of officiated social norms. North (2006), for example, argues that “institutional innovation intended to reduce uncertainty&” is the defining quality of sociopolitical progress in human societies (pg. 2). An example of the legal system reducing uncertainty is found in the requirement that governments compensate individuals for the appropriation of property, since “such takings are uncertain events” (Posner, 2009). Another way the law reduces uncertainty is by establishing and enforcing social norms (Licht, 2007), since social norms play a critical role in reducing uncertainty about one’s own decisions (Feldman & Maccoun, 2005), as well as reducing social uncertainty. In previous eras, societies lacked a peaceful way to reconcile disagreements between different systems of social norms and ideological beliefs; the unfortunate solution was to wage holy war (Marris, 1996: pg. 32). Marris argues that the definitive benefit of the law—and in particular, private litigation—is its replacing holy war as the mediator of incompatible ideologies. The law’s peaceful dispute-resolution process paves the way for convergence to one set of social norms, increasing the predictability of social behavior and reducing uncertainty about the social environment. This salutary effect is observed, for example, in the gradual (and substantial) reduction in violence observed over all of human history (Pinker, 2007). | >
> | As noted, law serves the purpose of reducing uncertainty about the behaviors of other members of society by motivating convergence to a collection of officiated social norms. North (2006), for example, argues that “institutional innovation intended to reduce uncertainty” is the defining quality of sociopolitical progress in human societies (pg. 2). An example of the legal system reducing uncertainty is found in the requirement that governments compensate individuals for the appropriation of property, since “such takings are uncertain events” (Posner, 2009). Another way the law reduces uncertainty is by establishing and enforcing social norms (Licht, 2007), since social norms play a critical role in reducing uncertainty about one’s own decisions (Feldman & Maccoun, 2005), as well as reducing social uncertainty. In previous eras, societies lacked a peaceful way to reconcile disagreements between different systems of social norms and ideological beliefs; the unfortunate solution was to wage holy war (Marris, 1996: pg. 32). Marris argues that the definitive benefit of the law—and in particular, private litigation—is its replacing holy war as the mediator of incompatible ideologies. The law’s peaceful dispute-resolution process paves the way for convergence to one set of social norms, increasing the predictability of social behavior and reducing uncertainty about the social environment. This salutary effect is observed, for example, in the gradual (and substantial) reduction in violence observed over all of human history (Pinker, 2007). | | | If a plaintiff feels wronged, and a defendant feels otherwise, there is no amount of moral theorizing that can cause them to reconcile. At the same time, legal interventions are often the sort of interventions that would be strictly forbidden, such as the deprivation of property, restriction of agency, and infliction of physical injury. The members of society will submit to the law’s mediation of such disagreements only if the legal system is seen as legitimate (Tyler, 2006). Chase (2005) summarizes this universal social problem: | | | At the same time, judges make decisions under substantial cognitive and emotional uncertainty (Posner, 2008). They must make confident factual findings; they must order momentous transfers of money; and they must condemn other human beings to lives in captivity—or even death. They must render these decisions under severe time pressure, with insufficient evidence, and with ambiguous legal source materials. They lack the expertise and apparatus needed to predict the consequences of their decisions. And yet, in spite all of these grave problems—these profound sources of uncertainty—judges remain confident in their rulings. Indeed, it is a prerequisite for the perceived legitimacy of a judgment that the judge have complete certitude in its rightness (Chase, 2005). A judge’s uncertainty would pose a threat to social stability. The uncertainty felt by the deciding judge, as well as society’s uncertainty in the legitimacy of the legal system, are the focus of the rest of this essay. | |
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< | Jerome Frank’s Law and the Modern Mind (1935) was the first attempt to comprehensively examine the law’s response to the problem of uncertainty. Frank’s main goal was to critique the reigning approach in the academy and judiciary, what I call “legalism” but what Frank called “legal fundamentalism.” Legal fundamentalists believe that law must meet remarkable standards of purity, the most important being temporal persistence and logical coherence. As an example of this pathology, Frank points to the doctrine of punitive damages in tort, which the Michigan Supreme Court had allowed for a time, then banned for a few years, and then allowed again (pg. 49). The legalists argued that these judicial decisions did not constitute law because law is eternal—it cannot change back and forth every few years. Moreover, according to Frank, the majority of 1930s American lawyers would have agreed with the legalists, believing that “the principles of law are absolute, eternal, and of universal validity” (pg. 54). This phenomenon, which Christenson (1985) called the lawyer’s “quest for certainty,” relates to the earlier discussion of worldviews. As noted, people construct worldviews as a preliminary defense against emotional uncertainty (van den Bos, 2009). Cultivation by judges and law professors of legalist beliefs can be seen as a similar process. The widely-held legalist worldview served to reduce uncertainty about the fundamental problems with existing legal concepts and practices. Lawyers shared a subliminal uncertainty with the law, and the legalist concept of a pure, perfect law served to allay that uncertainty. | >
> | Jerome Frank’s Law and the Modern Mind (1935) was the first attempt to comprehensively examine the law’s response to the problem of uncertainty. Frank’s main goal was to critique the reigning approach in the academy and judiciary, what I call “legalism” but what Frank called “legal fundamentalism.” Legal fundamentalists believe that law must meet exacting standards of purity, the most important being temporal persistence and logical coherence. As an example of this pathology, Frank points to the doctrine of punitive damages in tort, which the Michigan Supreme Court had allowed for a time, then banned for a few years, and then allowed again (pg. 49). The legalists argued that these judicial decisions did not constitute law because law is eternal—it cannot change back and forth every few years. Moreover, according to Frank, the majority of 1930s American lawyers would have agreed with the legalists, believing that “the principles of law are absolute, eternal, and of universal validity” (pg. 54). This phenomenon, which Christenson (1985) called the lawyer’s “quest for certainty,” relates to the earlier discussion of worldviews. As noted, people construct worldviews as a preliminary defense against emotional uncertainty (van den Bos, 2009). Cultivation by judges and law professors of legalist beliefs can be seen as a similar process. The widely-held legalist worldview served to reduce uncertainty about the fundamental problems with existing legal concepts and practices. Lawyers shared a subliminal uncertainty with the law, and the legalist concept of a pure, perfect law served to allay that uncertainty. | | | Frank (1935) had this to say in response to the legalist mindset: | | | Particularly in societies in which revenging wrong is expected, the losing party, convinced of the rightness of his cause, will see the judge as an ally of the enemy, and be inclined to seek retribution. If the judge’s decision is seen to be compelled by some neutral force, this problem is attenuated (pg. 33).
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< | Displacing responsibility for a decision onto external forces therefore functions to reduce the society’s uncertainty in the legitimacy of his decision. Other examples of this displacement strategy are observed when judges say that “the Constitution permits” or “the Constitution does not permit” or “the law permits” or “the law does not permit,” all of which are disingenuous statements given that they effectively mean “I permit” or “I do not permit.” Judges often refer to past decisions of the court through such constructions as “_we_ held” or “_we_ decided,” which are suggestive of a unitary body with unitary agency, notwithstanding that courts are composed of many judges with frequent turnover (Chase, 2005). This language is even used when referring to cases in which one or more judges filed a dissent. “Textualism”—law’s equivalent to theology’s literalism—is also popular among judges because it displaces responsibility from the judge onto an inanimate object: a written document. Aside from the responsibility-displacing effect, the textualist mindset also serves to reduce a judge’s personal uncertainty about their rulings. Repeating legal texts worshipfully—as if the words themselves have intrinsic value—reduces uncertainty by relieving judges of the obligation to think carefully about the real-world effects of their decisions (see also Phillipse, 2007). | >
> | Displacing responsibility for a decision onto external forces therefore functions to reduce the society’s uncertainty in the legitimacy of his decision. Other examples of this displacement strategy are observed when judges say that “the Constitution permits” or “the Constitution does not permit” or “the law permits” or “the law does not permit,” all of which are disingenuous statements given that they effectively mean “I permit” or “I do not permit.” Judges often refer to past decisions of the court through such constructions as “we held” or “we decided,” which are suggestive of a unitary body with unitary agency, notwithstanding that courts are composed of many judges with frequent turnover (Chase, 2005). This language is even used when referring to cases in which one or more judges filed a dissent. “Textualism”—law’s equivalent to theology’s literalism—is also popular among judges because it displaces responsibility from the judge onto an inanimate object: a written document. Aside from the responsibility-displacing effect, the textualist mindset also serves to reduce a judge’s personal uncertainty about their rulings. Repeating legal texts worshipfully—as if the words themselves have intrinsic value—reduces uncertainty by relieving judges of the obligation to think carefully about the real-world effects of their decisions (see also Phillipse, 2007). | | | Perhaps the subtlest example of displacing responsibility for a ruling onto a “neutral force” is the use of syllogistic reasoning in judicial opinions (Frank, 1935). Consider the following stylized example. A young man confesses to his priest that he is about to murder his wife. The priest advises against the murder, but otherwise does nothing, and the wife is dead the next morning. The wife’s parents sue the priest for wrongful death, but the priest claims that the sanctity of the confessional booth relieved him of any duty to warn. Suppose that the court decides to rule in favor of the parents, justifying its ruling based on a fundamental principle: the duty to warn. The published opinion then employs impeccable formal logic. The major premise is the fundamental principle, that all citizens have a duty to warn potential victims if they learn that serious harm is imminent. The minor premise is that the priest learned that serious harm to the wife was imminent. Applying the major premise to the minor premise, the court is compelled to conclude that the priest breached his duty and must pay damages. | | | Another legal-uncertainty-reduction strategy is codification of the law into statutes. Germans were the first to attempt systematic codification of the law; code advocates were consciously interested in reducing uncertainty (Frank, 1935). That Germany was the first country to undertake this task is consistent with the hypothesis offered by Hofstede (2001) that high-uncertainty-aversion countries should feel a more intense need for legislation than countries with lower uncertainty aversion. Germany has high uncertainty aversion and a labyrinthine statutory regime, while Great Britain has low uncertainty aversion and minimal codification. In Germany’s first attempt at codification, spearheading monarch Frederick the Great envisioned that “all contingencies should be provided for with such careful minuteness that no possible doubt could arise at any future time” (pg. 186). In particular, judicial discretion was explicitly disavowed. | |
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< | The plan failed miserably (Frank, 1935). The complexities of German society chafed against the idealizations in the code. Without some interpretive discretion given to courts, the law was indeterminate in case after case, and decisive rulings were elusive. The Germans learned the hard way that a naïve belief in the completeness of codified law—and the corollary normative judgment that courts should apply only the text of codes—leads to the opposite effect sought by the legalist. Rather than reducing uncertainty, a code-oriented legal system amplifies it, among lawmakers, judges, and all of society. The Germans under Frederick believed that the code, once written, would be eternal and would require only interpretation. They found—as Americans have found with the Constitution—that if one looks to an unchanging document as authoritative in changing times, a gradually widening gap will emerge between the law as written in the code and the law as practiced in the courts. The legal schizophrenia that results increases the uncertainty of judges in the rightness of their decisions as well as the uncertainty of prospective litigants ex ante. | >
> | The plan failed miserably (Frank, 1935). The complexities of German society chafed against the idealizations in the code. Without some interpretive discretion given to courts, the law was indeterminate in case after case, and decisive rulings were elusive. The Germans learned the hard way that a naïve belief in the completeness of codified law—and the corollary normative judgment that courts should apply only the text of codes—leads to the opposite effect sought by the legalist. Rather than reducing uncertainty, a code-oriented legal system amplifies it. The Germans under Frederick believed that the code, once written, would be eternal and would require only interpretation. They found—as Americans have found with the Constitution—that if one looks to an unchanging document as authoritative in changing times, a gradually widening gap will emerge between the law as written in the code and the law as practiced in the courts. The legal schizophrenia that results increases the uncertainty of judges in the rightness of their decisions as well as the uncertainty of prospective litigants ex ante. | | | Frank (1935) advocated that the judicial realities making legal certainty impossible should be given full air and acceptance. He thought that this good-faith acceptance of reality would facilitate effective reform: | | | 5. Conclusion | |
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< | The many connections between uncertainty, religion, and law described in the previous sections justify further empirical investigation of the subject. In this section, I propose a relatively simple economics experiment that would make a small but significant contribution to this subject area. The experiment is founded in the observation that the existing empirical work on uncertainty and uncertainty management tests the effects of priming emotional uncertainty on subjects who perform a task and then fill out a questionnaire (e.g., van den Bos, 2009). The experimental data consist of the answers to the questionnaires. What hasn’t been done—and which moves us into the area of experimental economics—is to test the effects of salient social priming on uncertainty aversion, as measured in an Ellsberg task (Ellsberg, 1961). My two- fold hypothesis, motivated by the arguments made in the previous sections, is that religious and legalist priming can reduce observed uncertainty aversion in the task. | >
> | The many connections between uncertainty, religion, and law described in the previous sections justify further empirical investigation of the subject. In this section, I propose a relatively simple economics experiment that takes a small step toward reducing the scientific uncertainty in this subject area. The experiment is founded in the observation that the existing empirical work on uncertainty and uncertainty management tests the effects of priming emotional uncertainty on subjects who perform a task and then fill out a questionnaire (e.g., van den Bos, 2009). The experimental data consist of the answers to the questionnaires. What hasn’t been done—and which moves us into the area of experimental economics—is to test the effects of salient social priming on uncertainty aversion, as measured in an Ellsberg task (Ellsberg, 1961). My two- fold hypothesis, motivated by the arguments made in the previous sections, is that religious and legalist priming can reduce observed uncertainty aversion in the task. | | | The Ellsberg task presents the test subject with two jars full of blue and green marbles. One jar, clearly labeled, has five blue marbles and five green marbles. The other jar also has ten marbles in it, but the proportion of blue and green marbles is unknown to the subject. The subject chooses a jar and picks out one marble. If blue, he wins $10; if green, $0. Under standard decision theory, the two jars have the same expected value and the test subject should be indifferent between them. Many experiments have shown, however, that subjects choose the jar with known color proportions about 75 percent of the time. |
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