Kevin Tobia, ‘Law and the Cognitive Science of Ordinary Concepts’

This chapter introduces the ‘folk law thesis’, the claim that ordinary concepts are at the heart of central legal concepts. It presents recent empirical work suggesting that a number of subtle and surprising features of ordinary concepts are also shared by the corresponding legal concept – including features of intent, knowledge, consent, reasonableness, and causation. This approach to law opens a range of new and promising empirical research questions: For each legal concept, what are the features of the corresponding ordinary concept – and what, if any, are the distinctive features of the legal concept? It also opens an equally vast range of new normative questions: For each feature of the relevant ordinary concept, we can – and should – ask whether the legal concept should have that feature. In this way, the cognitive science of ordinary concepts is not only a useful part of legal psychology, but also a critical part of legal theory and jurisprudence.

Tobia, Kevin P, Law and the Cognitive Science of Ordinary Concepts (March 1, 2020). Handbook on Law and the Cognitive Sciences (Cambridge University Press, forthcoming).

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