How much suffering is necessary? The sad state of UK animal law

Animal law in the UK purports to protect animals from ‘unnecessary suffering’. It does no such thing. In reality, the test for whether a cruel practice is legal is whether it is an industry-wide accepted norm. As well as traditional animal advocacy focussing on dietary and individual change, we should do three things. First, campaign for an independent body accountable for animal welfare in the UK government. Second, advance animal law indirectly through other areas of law that are less ambiguous. Third, call upon judges to apply the usual principles of legal reasoning to animal welfare.

Thou shalt not suffer (unnecessarily)

On paper, animal welfare law in the United Kingdom looks rosy. The Animal Welfare Act 2006 makes it an offence to cause “unnecessary suffering” to an animal (and its predecessor, the Protection of Animals Act 1911, similarly prohibited “unnecessary suffering”). The Welfare of Farmed Animals Regulations 2007 states that all farmers must take “reasonable steps” to ensure animals are not caused “unnecessary pain, suffering, or injury”. Even the law governing animal experimentation, the Animals (Scientific Procedures) Act 1986, says that experimenters must protect animals from “avoidable suffering and unnecessary use”.

This begs an obvious question: How much suffering is “necessary”? The statutes listed above aren’t particularly helpful. The Animal Welfare Act, for example, directs the court to consider whether “the suffering could reasonably have been avoided”, or whether the conduct causing suffering was that of a “reasonably competent and humane person” (s4(3) AWA 2006). These vague guidelines do little to address the suffering that is routinely – and legally – inflicted upon the billion animals slaughtered in UK factory farms each year. The guidelines do not explicitly tackle the hard questions: Is meat consumption “necessary”? Are factory farms? Is starvation and mutilation “necessary”?

These practices appear only to be legal by some complicit understanding between the government and the judiciary. It seems the law of “necessity” is fatally underdetermined when it comes to animal suffering. For comparison, then, let’s see how it works when we are talking about humans.

When is murder (of human animals) necessary?

We need to go back to 1884. In the summer of that year, a ship set sail from Southampton with a crew of four, and sunk off the Cape of Good Hope. Luckily, all four crew members were able to get aboard a lifeboat. Unluckily, all they had with them was two cans of turnips.

Ten days later, the crew were drinking their own urine. The seventeen year old cabin boy Richard Parker was immobile, and possibly unconscious, from hunger and drinking seawater. On the nineteenth day, Captain Dudley and his shipmate Stephens cut Parker’s throat with a penknife. The remaining crew consumed his flesh, survived, and were rescued four days later by a German freighter.

Back in England, Dudley and Stephens confessed and were charged with murder. The only possible defence the court could consider was one of necessity: Should the pair be found not guilty because they had no other choice but to kill Parker? After much deliberation, the court ruled no. The policy implications were too dangerous; Lord Coleridge acknowledged that a defence of necessity could act as a “legal cloak [for] atrocious crime”. To this day, then, the case of R v Dudley and Stephens is authority for the fact that there can be no defence of necessity to murder.

Dudley and Stephens also marked the beginning of a string of case law developing the defence. Over the years, two key ideas have emerged. The first is that the test of necessity is very difficult to satisfy. This makes sense. If laws are to be respected, one cannot break them with impunity unless there is a very, very good reason.

The second is that we cannot say something is necessary if a reasonable alternative is available. Again, this is quite obvious. If there had been an abundance of water and food on that lifeboat, there wouldn’t have been much for the Court to consider.

While discussing this case, it is important to make clear that the doctrine of necessity is, strictly speaking, a defence to committing a crime. But the broader point is that the court is perfectly capable of understanding what ‘necessary’ means; no special legal interpretation is required. In short, ‘necessary’ means there are no other reasonable options available.

When is (non-human animal) murder necessary?

Let’s pause for a second to imagine we lived in an anti-speciesist world. That is, a world where the interests of all individuals are weighted equally according to their needs, not their species membership. In this world, the doctrine of necessity would be the same whether applied to human or non-human animals.

When faced with the suffering of a non-human animal (for example, an animal that had been raised for slaughter in factory farm conditions), the court would first remind itself that establishing the suffering was ‘necessary’ will be very difficult. Then, the court would consider whether there were any reasonable alternatives available.

Let’s see. The Academy of Nutrition of Dietetics, the largest nutritional organisation in the world, reports that “appropriately planned vegetarian diets, including total vegetarian or vegan diets, are healthful, nutritionally adequate, and may provide health benefits in the prevention and treatment of certain diseases”. Official health bodies around the world support this view.

In an anti-speciesist world, the legality of keeping animals in factory farm conditions would be an open-and-shut case. We should not harm animals unnecessarily; the consumption of animal products harms animals; we should not consume animal products. Case closed.

Clearly, we do not live in an anti-speciesist world. But what kind of world do we live in? If the legal system does not really prevent unnecessary suffering, how does it operate? We can get an idea of this by looking at a few case studies. Of course, the law does not operate in isolation, but is simply one of the many institutions that uphold speciesism and animal exploitation. What the cases reveal, however, is that when he law does step in, it is not to prevent unnecessary suffering, but rather to placate the interests of the animal agriculture industry.

The principles of reason no longer apply: How the courts condone unnecessary suffering

Roberts v Ruggiero (QBD, 3 April 1985)

This case concerned the use of veal crates (which was legal at the time of the trial, but has been banned since 2007. The UK continues to shoot around 100,000 calves per year for veal, however.)

Veal crates were tiny, individual wooden stalls into which calves were crammed to spend the duration of their short lives. These crates caused tremendous suffering to calves, who received nothing but a liquid diet, were provided with no bedding, and were not even able to turn around. A claim was brought arguing that the use of these crates caused unnecessary suffering to the calves. So far, so reasonable.

The court, however, decided otherwise. As the calves didn’t suffer “beyond that which was general in animal husbandry”, the argument went, their suffering could not be unnecessary. This perverse reasoning is a catch-22 for farm animals; suffering is prohibited, but suffering inherent in the farming process doesn’t count. In other words, as the use of veal crates was a standard industry practice, the court simply didn’t dare to rule it illegal. This reluctance to disrupt industry norms has tragically persisted for decades.

Compassion in World Farming v Secretary of State for Environment, Food, and Rural Affairs [2003] EWHC 2850 (Admin)

Globally, we breed and kill around 44 billion chickens a year. That’s 1,400 per second. Think about that. In the time it will take you to read this sentence, more chickens will be killed than all the victims of Ebola in Sierra Leone.

This case, brought by Compassion in World Farming, concerned the way we treat them. In the UK, we have selectively bred chickens to grow much faster and much larger than they ever would naturally. As a result the birds suffering from a host of crippling health problems, from broken bones, to bleeding blisters, to internal organ failure.

Remember, there are two ways in which the UK farm industry exploits these birds. First, to consume their bodies. Second, to consume their eggs. Now, the rapid growth of birds raised for chicken meat is not a problem for the industry. They are simply left to grow beyond what their brittle bones can bear, suffering the painful consequences, and be slaughtered in their infancy. Rapid growth is a problem, however, when it comes to egg laying hens. Chickens are only able to lay eggs when they reach sexual maturity at around 18-24 weeks. But if the egg-laying hens were fed normally, their fast-growing genotype would mean that they would barely be able to stand, let alone lay eggs, by the time they got to 18 weeks.

The industry solution was to starve the egg-laying hens for the first twenty weeks of their lives. Birds were routinely fed less than half the food they needed, and in some cases as little as twenty per cent. Unsurprisingly, a study found that the birds were “chronically hungry”.

The court was presented with all of these findings at trial. The relevant law required that all animals “must be fed a wholesome diet” and in “sufficient quantity to promote a positive state of well being” (Paragraph 14 of the Annex to Council Directive 98/58/EC).

If you were being fed around 20 per cent of your daily caloric needs, which is around two slices of bread per day, a court would not need much convincing that you were not receiving a “wholesome” diet. Yet once again the court rejected the blindingly obvious conclusion that the practice was unlawful, and once again deferred to industry standards.

At the Court of appeal, Lord Justice May decided that the restricted diet was “appropriate”, even if the birds were persistently hungry, as it was taken as a given that the legislation allowed the intensive farming of chickens of fast-growing genotypes. The idea that the court could intervene to prevent nonhuman animal suffering, at the expense of industry profits, was not even entertained.

Ford v Wiley 23 QBD 203 [1889]

There is certainly reason to be despondent. It seems that any farming practice, if sufficiently widespread, will be upheld by the court, and preventing “unnecessary suffering” does not seem to be part of the equation.

But even this dire situation presents a sliver of hope. If we can work towards changing industry practices, then it is possible the legal system will step in and declare abuses to be illegal when they are on the decline.

Admittedly, we do have to back a long way to find a case in support of this. All the way to 1889, in fact. In the case of Ford v Wiley, a farmer in Norfolk used a common saw to remove the horns of 32 young cattle. This caused the cattle excruciating pain, which the farmer sought to justify as it was more profitable and convenient for him.

Importantly, at the time of the case sawing off the horns of calves was a dying practice that had been recently re-established. It was no longer the widespread norm that it had been in previous decades. Accordingly, the court did not simply write-off the suffering of the calves as “no more than usual” for the farming industry, but rather considered that there must be some proportionality between the suffering inflicted and the objective achieved.

Judge Hawkins didn’t mince his words: “[T]o put thousands of cows and oxen to the hideous torments described in this evidence in order to put a few pounds into the pockets of their owners is an instance of such utter disproportion between means and object, as to render the practice as described here not only barbarous and inhuman, but I think clearly unlawful”.

The point is this. If an industry practice is on the way out, it is possible that the court will conduct an analysis that actually considers the suffering inflicted. This conclusion can lead us two ways. First, we should work on changing industry practices, rather than waiting for the courts to declare them illegal. Second, we should consider changing court practices, rather than waiting for industry to sacrifice its profits to animal welfare. The third option, of course, is attempting to turn our speciesist institutions upside-down. This is the most difficult, most long-term challenge, and one that will involve a fundamental shift from viewing animals as objects to be used to viewing them as individuals to be cared for.

What is to be done

It is important to realise that (despite what some lawyers might think), the law is not the be all and end all of how our society is run. The law is just one cog – and a pretty small one – in the speciesist system that enables routine abuse of animals. That said, the judiciary has a unique place in our political system, in that it has the ability to rule certain abuses illegal, and effectively force the executive to make the practices they are condoning explicit. For example, if the judiciary ruled that starving birds was illegal, the UK government would have swiftly enacted new laws stating that it was. However, at least the government would have had to be explicit in saying starvation is acceptable. As it stands, they don’t even have to do that much.

With this in mind, let’s look at some of the things we could do to make our justice system more just. We’ll start with some non-legal measures, and then look at what lawyers and judges should do.

Non-legal measures

Many animal advocacy groups in the UK urge people people to turn vegetarian or vegan. This is important; the average meat-eater in the UK consumes around 7,000 animals in their lifetime. However, it does not directly tackle the problem that our political and legal institutions primarily view animals as resources to be exploited, rather than individuals capable of morally-relevant suffering.

In order to change this paradigm, we need to restructure institutions to make them accountable for representing the interests of animals.

Other European countries have measures in place to this effect. Switzerland, for example has an Animal Welfare Committee in Government, a Parliamentary Group for the Protection of Animals, and a (small, but existent) Animal Party. The Netherlands has the Animal Welfare Police; Germany has a Minister for Animal Welfare, and an Animal Welfare Committee and Commissioners; and Denmark has an Animal Welfare Minister, Special Committee, and Councils.

Admittedly, this collection of buzzwords has not overturned the speciesism that pervades national policy-making, and their direct impact may be difficult to measure. In principle, however, these initiatives acknowledge the need to have some independent body accountable for animal welfare within government. Lobbying for an Animal Welfare Ombudsman or Commission in the UK therefore seems like a worthwhile strategy for many animal advocacy groups.

Legal measures

There are two things to be done here.

First, lawyers should work on animal law indirectly through other areas of law. One of the biggest problems with animal law is that is it so vague. Judges are left to decide what amounts to “unnecessary suffering”, or what a “positive state of wellbeing” means. They are not sufficiently directed on what this should translate to in reality, and as a result largely defer to the animal agricultural industry on what is a common and acceptable practice.

Other areas of law are much clearer. Key cases in patent law, environment law, and freedom of information law, for example, can all have animal welfare implications. Take patent law. The case of Upjohn involved the patenting of a mouse who had been modified to lose all of its hair and serve as a test subject for balding treatments. The European Patent Office had to consider whether the patent would be contrary to “ordre public or morality” (article 53(a) European Patent Convention). The EPO ruled that the mouse was not patentable. In the case of Octomouse, however, which involved a mouse who was genetically modified to develop cancer for the purposes of medical research, the patent was granted. Cases such as these help to provide a benchmark that animal welfare law can learn from. They also expose the inconsistency in our treatment of animals: If it is unethical to breed a mouse for curing baldness, why is it ethical to breed billions of animals for slaughter?

Second, let’s tackle the application of animal law directly. We need judges who are willing to stand up and state the obvious when current practices are clearly illegal. When the law says animals should be fed a “wholesome diet”, for example, it makes a mockery of our legal system that routine starvation is declared lawful.

Of course, there are enormous barriers to making this happen. We are speciesist. We favour the status quo. Animal welfare is not a vote-getter, and subsequently not a law-maker. Not only huge corporations, but almost all individuals, have a vested interest in keeping animal products cheap and factory farms out of our minds. And – importantly – the principle of judicial deference indicates that judges should avoid trampling over Parliament’s intentions when they interpret the law.

Yet despite these hurdles, the judiciary remains in the business of dispensing justice. They remain separate from the executive and the legislature precisely to make sure that impartial justice remains possible. The court cannot be in the business of ruling that black is white, no matter how many vested interests are at stake.

Lord Mansfield, the Chief Justice of England in the case of Rex v Wilkes in 1768, wrote that,: “The constitution does not allow reasons of state to influence our judgement […] We must not regard political consequences, however formidable they might be […] Justitia fiat, ruat coelum – Let justice be done, though the heavens fall”. Lord Mansfield’s words seem to speak directly to the dilemma judges face when asked to rule on animal law. They also recall times when justice has been done, even in the face of overwhelming political pressure.

In 1610, it was the judiciary who decided that Acts of Parliament can be struck down if they contravene “common right and reason”. In 1772, it was the judiciary who declared slavery so “odious” as to be illegal. In more recent times, it was the judiciary who declared that deep interrogation is torture, that being gay is not a crime, and that police must investigate rape claims. Perhaps, in 2020, 2040, or even 2060, it can be the judiciary who declare that factory farming is the worst crime in history.

This won’t happen overnight, or even in the foreseeable future. It also won’t happen without a fairly radical shift in our political and judicial system. But it is important we take steps in the right direction. Take one small step now, and consider learning more about, or supporting, Sentience Politics.

Why Cost Effectiveness Matters

The UK has recently pledged in law to spend 0.7% of its gross national income on aid.  As a lawyer interested in effective altruism, I wanted to write about how the pledge could be vastly improved by having some sort of ‘effectiveness’ element to it. Ideally, the law shouldn’t just dictate the amount to be given in aid; it should also set aside a portion for only the most effective interventions.

First, however, I’d like to convey why cost-effectiveness is not just one more tick on a checklist of things donors want. If the effective altruism (EA) movement has persuaded me of anything, it is that cost-effectiveness may be the one of the most important considerations of all. For a fuller discussion of EA and the importance of cost-effectiveness, see here and here.


We are all familiar with cost effectiveness. We buy things all the time. Let’s say I want to buy some chocolate (a not unusual occurrence) and there are two sizes to choose from. The first is 100g and costs £1, and the second is 200g and also costs £1.

Hmm. If we make the optimistic assumption that there are no negative consequences to chocolate consumption, it is clear that I should buy the 200g. In fact, if I don’t buy the 200g bar, but choose the 100g instead, I have thrown away 50% of the chocolate I could have owned.

We can also think this way when buying stuff for other people. Perhaps my local school is asking for donations of books. I can buy 10 encyclopaedias for £100 from one bookstore, or I can buy 20 for £100 from a cheaper shop.

If I choose the less cost effective option, I’m not just wasting my own money any more; I am depriving school children of 10 books. I am throwing away 50% of the educational value I could have created.

I find type of counterfactual thinking the key to understanding cost effectiveness. The relevant question is always: What else could this investment have produced? Could I do more good investing in another place, for other recipients, or at another time?

Perhaps, for example, I shouldn’t have bought the books in the UK at all, but instead bought them for schools in Africa, where where £100 could buy over 350 books. And why stop with books? If my goal is to improve school experiences for children, there may be even better ways to help.

In his brilliant and highly-recommended new book Doing Good Better, philosopher William MacAskill compares the cost effectiveness of various charitable interventions.

He cites one study which showed that giving textbooks to schools in Africa actually had little impact on the attendance or performance of the children.  An initiative that deworms school age children, however, increased attendance by a huge 25%. The deworming programme proved one of the most cost-effective interventions in the world, with every £65 spent providing ten additional years attendance. Instead of buying 10 encyclopaedias for British schools, then, the same investment could have produced almost twenty additional years of school attendance in Africa. Differences in cost effectiveness can be enourmous.

The most staggering example of this I can remember was cited by philosopher Toby Ord in his paper The Moral Imperative toward Cost-Effectiveness in Global Health.

Suppose I have £30,000 to spend, and my aim is to fight blindness. I can use the amount to train a guide dog, which will help a blind person gain more independence and freedom from their disability. Alternatively,  I could also use the money to pay for operations to reverse the effects of trachoma in Africa. Trachoma is a treatable infectious disease that has blinded 1.2 million people worldwide. The operation costs less than £30 per patient.

Let’s simplify, and say these are the only two options I have with my £30,000 budget to fight blindness:

  1. Provide one blind person with a guide dog, or
  2. Cure 2,000 people of blindness

Setting out the options in this way makes it beyond obvious what is the right thing to do. If everyone counts equally, then it is 2,000 times better to fund the operations than the guide dog. To fund the guide dog would be a waste of about 99.95% of the value I could have produced.

Sometimes numbers like this are hard to picture . Imagine four Boeing 747 planes lined up on a runway, with every seat of every plane occupied. Choosing to fund the guide dog is choosing to help one passenger. Choosing to fund the surgery is choosing to help them all. And if we imagine that ourselves, or a friend or family member, could be in any position on that runway, it seems clear that cost-effective option is, by definition, the most compassionate.


So far we’ve only discussed cost-effectiveness without roughly the same area. But how can we compare interventions in radically different sectors? Is it possible to weigh up the benefits of micronutrient supplementation with improved access to the arts? It is better to provide an extra year of school to 10 children, or to prevent one person from contracting malaria?

It can feel wrong just to ask the question. The standard objection goes along the lines of “but who are you to say that preventing malaria is better than accessing art? They are totally different things, you can’t compare apples and oranges”.

But we compare apples and oranges all the time. If we make the assumption that when people decide what to do, they are trying to fulfill their preferences (here we can use the example of improving personal wellbeing) then we are in fact experts at assessing the cost-effectiveness of decisions across a huge variety of sectors.

There are, for example, lots of ways in which I could invest my money or time to fulfill my preferences: I could buy chocolate, vitamin pills, a gym membership, or tickets to the cinema or an art gallery. I could spend time hanging out with friends, working in the library, reading EA blogs online, or watching Netflix in my pyjamas.

Both my time and money are limited, so when I decide to do one of these things over another, my decision is based on an assessment of how much each activity will improve my wellbeing.

So when I buy chocolate on my way from a long day, I do so because I think it will improve my wellbeing more than if I buy more lentils. When I buy a gym membership instead of cinema tickets, I am deciding that the investment I make in encouraging myself to exercise will further my well-being more than going out to see a few movies. I am able to compare the benefits of radically different activities – apples and oranges – all by reference to a singular preference or set of preferences. In the end, it can all cash out in term of wellbeing.

Of course, many of the decisions we actually make are very far from optimal for our wellbeing: We are all plagued with cognitive biases, motivational problems, and the frustrating human inability to sacrifice short-terms pleasure in pursuit of longer terms goals (I’m thinking of you, gym membership).

However, the fact remains that cross-domain comparison is not only possible but is the norm for decision-making, as long as we have a preference or set of preferences to refer to. There is no fundamental reason, then, why we cannot compare the effectiveness of different charities across the broadest possible spectrum of interventions, with the goal of reducing as much suffering as possible while counting everyone equally.

There are already a range of tools to facilitate such comparisons, though their use is mainly restricted to assessing health outcomes. The most commonly used universal measurement is known as a Quality Adjusted Life Years (QALY’s). If an intervention provides perfect health for one additional year, it is said to provide one QALY.

In the UK, for example, encouraging doctors to urge patients to stop smoking costs around £270 per QALY, a kidney transplant costs around £4,710 per QALY, and neurosurgery for malignant intracranial tumours costs around £197,780 per QALY.

This universal wellbeing measuring-stick is not without difficulties, but it is an immensely useful tool for ensuring that resources are directed in the fairest way possible. The idea behind QALYs could ultimately be expanded to encompass all aspects of wellbeing, not simply health alone (Ben Todd helpfully proposes well-being adjusted life years, WALY’s).

So it seems not only can we compare apples and oranges, but in a world where everyone deserve their fair share of fruit, we may be obliged to.


Finally, how should an understanding of cost-effectiveness affect the way we practice altruism?

First – consider donating to a cost effective charity! Just the knowledge that some charities are over 100 times more effective than others can be motivating: You can do the same amount of good with a £20 donation than someone else might do with £2,000, so not having a huge amount of disposable income does not need to be too disheartening.

GiveWell, a nonprofit charity evaluator, uses rigorous scientific analysis to recommend charities that save or improve lives as much as possible. The top rated-charities for 2015 are listed here. Animal Charity Evaluators does the same for animals, and their top-rated charities are here.

Second – perhaps consider changing the way you think about altruism. A few years ago, I spent some weeks as a fundraising caller for my university. My job was to call up alumni and ask them for for monthly donations to fund projects such as new university buildings, outreach, and hardship funds for students.

Around 70% of people I called chose not to donate, and their reasoning ranged from “Drop dead and never contact me again!”, to “Dave is out and will never be back home”. There was one objection, however, that made me pause. Sometimes people would tell me, “I already donate what I can to the Against Malaria Foundation, should really I switch and donate to an Oxford college?!”. I couldn’t, in good faith, tell them that they should. And so I didn’t.

Universities such as Oxford, however, routinely receive massive donations. Last year, higher education institutions in the UK alone received £485 million in donations.  In 2012, venture capitalist Michael Moritz gave Oxford University £75m to help it attract more students from poorer backgrounds. The donation was described as “the biggest philanthropic gift for undergraduate financial support in European history”.

Moritz’s generous donation will undoubtedly do an enormous amount of good. Those from wealthy backgrounds continue to have privileged access to top universities, and there is much to be gained from a more representative section of the public having a voice among elite decision-makers.

The same amount of money, however, could have provided almost 18 million insecticide bednets or 90 million schistosomiasis treatments – the equivalent of saving over 34,000 lives. This is almost double the number of students currently studying at Oxford University. The money could have also saved the lives of over 5 billion animals – ten times as many as all the cats and dogs kept as pets worldwide.

This is not to suggest that Moritz should obviously have donated elsewhere; scholarships supporting systemic change among developed nations may well be very effective in the long term, especially if shorter-term interventions such as insecticide-treated bednets become less chronically under-funded. It may well be better for large donors to fund research rather than direct interventions.

It is also counter-productive to condemn any less-than-maximally effective donation decision; we are all motivated to contribute to societies we associate with, and doing any amount of good is infinitely better than doing none at all.

I intend only to point out that a cost-effectiveness mindset challenges unquestioning and unreflective praise of of any type of charitable giving. If every individual matters equally, and some interventions are 100 times more effective than others, we should perhaps reserve the highest of our praise for those philanthropists who attempt to help as many as possible, by as much as possible. And in a new age of “super-donors”, such as Mark Zuckerberg and his $45 billion philanthropy initiative, this need for critical analysis may be more important than ever.

3 Disturbing Questions to Ask Yourself Before You Go to Court

Society in general, and the courts in particular, have long been aware of explicit, discriminatory bias. Efforts to combat racism, sexism, classism, and homophobia in the justice system are ever-intensifying. And rightly so. Unfortunately, however, not all thinking errors are as well-known and recognisable as racism or sexism.

Our judgements are just as easily affected by biases that unconsciously seep into decision-making through seemingly irrelevant circumstance. These lesser known biases rarely make it outside of psychology journals into court procedure, but if you ever find yourself facing the justice system, the three questions below might become worryingly relevant.

1. Are you pretty?

What is beautiful is good. And judges, like most people, prefer the good-looking. In one study, police in Texas were asked to rate the physical attractiveness of over 1,500 defendants in misdemeanour cases. The researchers then followed the defendants through to trial, and found that the more attractive a defendant had been rated, the less likely he or she would be to receive a jail sentence or hefty fine. It pays to be pretty. In this case, literally.

2. Have the jurors washed their hands?

If you’ve done something that might invite headshakes, tuts, and murmurs of ‘disgusting’ (think assault), then this question might matter more than you think. We associate moral purity with physical cleanliness – the so-called ‘Macbeth effect’ – and how clean people feel can affect the harshness of their moral judgements.

In one study, people were asked to clean their hands with antiseptic wipes before rating how bad they found various moral transgressions. The squeaky-clean hand wipe group judged the transgressions more severely than their (comparatively) dirty counterparts.

Similar results have been found where people just see a hand-sanitizer dispenser, reminding them of cleanliness, or when participants are just told to visualise cleanliness.

3. (When) has the judge had breakfast?

If you want to bail before your trial and its ten minutes to lunch – bad luck. One recent study followed Israeli judges making parole decisions (deciding whether a defendant can go home to await trial, or must wait in prison). The judges would make between 4 and 35 of these decisions each day, and would have two food breaks diving the day into three sections.

Immediately after meal breaks, the judges granted approximately 65% of the parole applications. Immediately before meals breaks, when the judges were at their most tired and hungry, they granted approximately…0% of the applications.


The practical significance of these studies is still unclear. Some of the findings remain controversial, and no-one is advocating that trial judges snack throughout proceedings or that jurors be kept away from wash rooms (or should they?). What the studies do make clear, however, is that even tiny, unconscious errors in judgement can undermine the objectivity of the entire justice system.

If we are outraged at the thought of an innocent person being incarcerated on the basis of their gender or skin colour, how much more outraged should we be about someone being locked up because the jury found them unattractive, or because the judge was hungry?

The absurdity of the injustice is no less great, we just haven’t admitted that the biases that lead to racial discrimination also lead to less socially acknowledged, but no less devastating, mistakes.

Accordingly, the political will to stamp out explicit  bias in the justice system exists, but the will to extinguish lesser-known biases does not. Yet behind each flawed decision is a real individual deprived of their liberty or property.

While we live in a world where unconscious injustice is possible, the first step is to get it on the list enemies to be defeated. Only once we commit to real objectivity, can we  plan to achieve it.

Video: Cognitive bias, public policy, and the law

A recent interview with Faculti Media on how cognitive biases can affect public decision making. I talk about scope insensitivity and aid spending, the availability heuristic and fundamental freedoms, and status quo bias and our global priorities. More videos to follow!

The Availability Heuristic and Public Policy Priorities

Or, Why Terrorist Benefits Cheats Aren’t Taking Your Jobs.

“If a random word is taken from an English text, is it more likely that the word starts with a K, or that K is the third letter?”

In 1973, this question was posed to 150 people, and over two thirds responded that the word is more likely to begin with K. In fact, the English language has about three times as many words with K in the third position than in the first. Similar results were found for the letters L, N, R and V – which all appear far more frequently in the third position, yet were deemed far more likely to be starting letters.

In explaining these results, Nobel Prize winning psychologists Amos Tversky and Daniel Kahnemann (1973) coined the term availability heuristicThey discovered that when faced with the first-or-third letter problem, people estimated the frequency of each group by seeing how easily examples of each could be recalled. It is easy to think of words beginning with K, L, N, and R; less so to think of words with these letters in third position. Accordingly, K, L, N and R were deemed to be more frequent as first letters, and less so as third.

This phenomenon was found to extend far beyond the letter game: We all fall back on availability heuristic when we assess how frequent or likely something is by the ease with which examples come to mind.

In assessing risks, for example, the heuristic prompts us to substitute the question, “how dangerous is this?” for “how easily can I recall examples of this being dangerous?” This distinction may not have been critical for our ancestors – common dangers (predators) would naturally have been easier to recall than uncommon ones (meteors), and would also pose the most serious threat to survival. The onset of mass media, however, has destroyed all equivalence between ‘recallability’ and danger.

So what it is that now makes some threats more recallable than others? Several factors seem to be at work, most notably the level of emotion the risk elicits, its familiarity, and its salience.

Where strong emotions are involved, people tend to focus on the badness of the outcome, rather than on the probability that the outcome will occur. The resulting “probability neglect” helps to explain excessive reactions to low-probability risks of catastrophe (Sunstein, 2003). A risk that is familiar, like that associated with terrorism, will be seen as more serious than a risk that is less familiar, like that associated with sun-bathing. Salience is also important: “The impact of seeing a house burning on the subjective probability of such accidents is probably greater than the impact of reading about a fire in the local paper” (Tversky and Kahneman, 1982).

Lets now examine these availability factors in relation to the UK media and public policy priorities, in particular the highly-covered topics of terrorism, immigration, and benefit fraud.

Terrorism is a statistically tiny risk to public safety, yet looms alarmingly large in the public eye. M15 instructs UK citizens to “always remain alert to the danger of terrorism”, yet since 2001 fewer British citizens have been killed by terrorism than by bee stings. It is clear, of course, why the risk has been socially amplified beyond proportion; the threat of random, violent attacks is could scarcely be more emotionally charged, familiar, and salient.

The threat posed by excessive immigration is  clearly less violent, but  no less emotional in its (much exploited) suggestions of injustice and  insecurity- and is certainly made familiar by overrepresentation in the news.

Screen Shot 2015-01-25 at 15.16.20

Accordingly, the British public overestimate the scale of immigration; believing on average that immigrants make up 24.4% of the population (the real figure is c.13%).

For similar reasons, we also overestimate the amount of public money that goes towards fraudulent state benefit claims, and believe that £24 out of every £100 is claimed fraudulently, when the true figure is 70p (34 times less than the estimate).

Importantly, the result of being mistaken about these numbers is not simply the loss of having true beliefs about the world, or the trouble of worrying about things that are not half as bad as you thought. Placing undue emphasis on the availability of a risk also allows for hugely disproportionate, and often questionably legal, law making. Lets continue with the examples of terrorism, immigration, and state benefits.

Over the last 15 years, the UK has seen six terrorism related Acts, which have variously allowed the state to indefinitely detain foreign nationals without charge, to commit pre-charge detention in terrorism cases, and to stop and search citizens without suspicion.

Since 2012, the Immigration Rules have required applicants or their partners to have an annual income of at least £18,600 (the National Minimum Wage, incidentally, is approximately c. £13,500) in possible violation of Article 8 of the European Convention on Human Rights.

Since 2013, people living in social housing with one or two spare bedrooms had their benefit payments reduced by 14% or 25% respectively, even when a disability has meant they could not relocate. Given the number of disabled people facing unemployment, 64% of claimants found themselves in this situation; the case is to be held before the Supreme Court.

These examples are illustrative only, and there are undeniably situations that merit a restriction on human rights, a limit on immigration, or restraints on welfare payments. But it is valuable to acknowledge that in a cataclysm of public concern, legislators will be far more able to push through questionable legislation by exploiting a fear that is not rooted in numbers or probabilities, but rather emotion, familiarity, and salience.

The the availability heuristic can also prevent the rational and cost-effective pursuit of goals we care about. Perhaps people support counter-terrorism efforts, for example, out of a concern for the right to life, or for the promotion of peace, or for fear of losing fundamental rights and freedoms in the West. If so, a better approach may consider preventing heart disease or cancer, supporting organisations that encourage inter-state cooperation, or backing social change organisations that seek to entrench human rights.

The availability heuristic is arguably so pervasive to public policy that is does not warrant mentioning: As the argument goes, the public should get what it wants, and something must be seen to be done in response to perceived threats. But if we care about making decisions that will affect the state of the world, then it heuristic is devastating in its distortion of priorities. One response might be to read less news, and think more thoughts; as Rolf Dobelli writes, “News is to the mind what sugar is to the body”.

References

Briñol, P., Petty, R. E., & Tormala, Z. L. (2006). The malleable meaning of subjective ease. Psychological Science, 17(3), 200-206.

Sunstein, C. R. (2003). Terrorism and probability neglect. Journal of Risk and Uncertainty, 26(2-3), 121-136.

Tversky, A., & Kahneman, D. (1973). Availability: A heuristic for judging frequency and probability. Cognitive psychology, 5(2), 207-232.

Punishment, Consequentialism, and the Appeal of Retribution

Why do we punish? Philosophical justifications for punishment have traditionally fallen into two broad categories: Retribution and consequentialism.

Retributivism looks backwards towards historical wrongdoings, and justifies punishment as what the perpetrator ‘deserves’ given the nature and degree of the transgression committed. Retributive punishment intrinsically values ‘just deserts’, and is indifferent as to whether punishment will have any positive effects in the future.

Consequentialism, on the other hand, is future-directed: It views punishment as justified to the extent that is achieves a desirable outcome for society. The particular desired outcome varies, but goals have included:

– Deterrence of offenders through the experience of punishment;
– Rehabilitation of offenders through treatment during punitive measures;
– Social protection through incapacitation of dangerous offenders;
– The upholding of the legal system;
– Moral education of society at large.

In assessing the support for these theories of punishment, an interesting tension arises between people’s (and policy-makers’) stated preferences and their measured intuitions.

Advocating for retribution-based justice is now taboo amongst policy-makers and politicians: The UK’s Criminal Justice System’s website writes that ‘[t]he purpose of the Criminal Justice System… is to deliver justice…by punishing the guilty and helping them to stop offending, while protecting the innocent”; President Obama earlier this year urged Palestinians and Israelis to “act with reasonableness and restraint, not vengeance and retribution” in order to achieve a “peaceful solution”. This explicit rejection of retribution is mirrored in psychological studies; when asked to provide justifications for punishment, people frequently report a motivation to deter future crimes (Ellsworth & Ross, 1983; Vidmar & Miller, 1980).

When studies assess behaviour rather than stated preferences, however, it seems that humans may be more innately retributivist than we might like to think.

In a study conducted by Jonathan Baron and Ilana Ritov (1993), participants were asked how best to punish a company for producing a vaccine that caused a child’s death. Some were told that a fine would incentivise the company to manufacture a safer product, while others were told that a fine would discourage the company from making the vaccine, and as there were no alternatives on the market, would ultimately lead to more deaths. Most participants were indifferent about this distinction, and wanted the company fined heavily, regardless of the consequence.

In his 2006 study, Kevin Carlsmith presented participants with different information relating to a crime, and found that 97% were drawn to retribution-related information over deterrence-related information. John Darley et al. (2000) similarly found that punishment decisions were highly sensitive to the retribution-related criteria and that participants largely ignored the likelihood of reoffending.

These studies, however, were not able to isolate how much people value retribution alone, because usually punishment both inflicts damage (satisfying the retributive motive) and communicates a norm violation (satisfying the deterrence motive).

A new study by Molly Crockett et al. (2014) solved this problem and isolated retributive motives by examining how much people will pay to punish another person, even when that other person will never know they have been punished (See above for the full study: Essentially, a player could ‘punish’ another defective player by paying to diminish the defector’s financial reward. The punished party, however, is not made aware of their financial position until the end of the game, and cannot know whether anything has been deduced as ‘punishment’.)

“Hidden” punishment, by definition, cannot deter future norm violations, but was nevertheless used by both victims and observers of victims. These findings provide unambiguous behavioural evidence that people are willing to invest personal resources in pure retribution without the possibility of deterrence.

In many cases, of course, the feelings that motivate a desire for retribution may be admirable – such as moral outrage and sympathy and compassion for the victims – but, as Paul Bloom writes, “on many issues, [feelings such as] empathy can pull us in the wrong direction. The outrage that comes from adopting the perspective of a victim can drive an appetite for retribution”.

If we care at all whether a punishment results in lives saved or lives lost, we cannot subscribe to retribution as a guiding principle of justice, however much our intuitions want us to.

To say we have an innate taste for retribution is not, then, to say we should indulge it. It is rather to say that in punishment, as in all areas of social policy, careful reflection, empirical data, and impartial scholarship are always likely to be better decision-making tools than amateur analysis and intuition.

 

References:

Baron, J., & Ritov, I. (1993). Intuitions about penalties and compensation in the context of tort law. In Making Decisions About Liability and Insurance (pp. 17-33). Springer Netherlands.

Carlsmith, K. M. (2006). The roles of retribution and utility in determining punishment. Journal of Experimental Social Psychology, 42(4), 437-451.

Crockett, M. J., Özdemir, Y., & Fehr, E. (2014). The value of vengeance and the demand for deterrence. Journal of Experimental Psychology: General, 143(6), 2279.

Darley, J. M., Carlsmith, K. M., & Robinson, P. H. (2000). Incapacitation and just deserts as motives for punishment. Law and Human Behavior, 24(6), 659.

Ellsworth, P. C., & Ross, L. (1983). Public opinion and capital punishment: A close examination of the views of abolitionists and retentionists. Crime & Delinquency, 29(1), 116-169.

Vidmar, N., & Miller, D. T. (1980). Socialpsychological processes underlying attitudes toward legal punishment. Law and Society Review, 565-602.

Loss Aversion, Framing Effects, and Out of Court Settlement

Imagine you are walking along the street and find £10. Great! You put the money in your pocket. Later, you go to reach for it and it isn’t there any more – you have lost your £10. This feels bad, and, importantly, it likely feels more bad than it felt good when you found it.

This emotional asymmetry is the basis of loss aversion. In prospect theory, loss aversion refers to the tendency for people to strongly prefer avoiding losses than acquiring gains (even when the outcomes of the decision are de facto identical). As demonstrated by Amos Tversky and Daniel Kahneman, losses are on average at least twice as psychologically powerful as gains.

This has a dramatic effect on the way we make choices. If the outcome of a choice is presented as a gain, people will be likely to choose a smaller, but guaranteed, gain, over one that is larger but entails a degree of risk. Conversely, if the outcome is presented as a loss, people will be reluctant to accept a definite loss, and will instead risk losing more for the chance to lose nothing at all. We are, then, very influenced by how a choice is framed.

This is particularly relevant for out-of-court settlement in civil litigation. Settling a legal dispute out of court is typically beneficial for both parties, yet far too few disputes settle when they (mathematically) should, and framing manipulation is one of the many reasons for settlement failure.

In 1996, Law Professor Jeffrey Rachlinski conducted a study in which half of the subjects, the ‘claimants’, could either accept a settlement of $200,000 dollars, or proceed to court where they would stand a 50% chance of being awarded $400,000. The other half, the ‘defendants’, could pay $200,000 to the claimant immediately, or continue to court and risk a 50% chance of being ordered to pay $400,000.

77% of the claimants were happy to take the settlement, but only 31% of defendants were happy to pay it. As predicted, complainants faced with choosing between a definite gain and the chance of a greater gain were risk averse, and defendants were risk seeking when choosing between a guaranteed loss and the chance to pay nothing.

In 2014, Ian Belton and colleagues conducted a study where subjects were presented with a similar scenario, and also examined whether lawyers are as susceptible to framing effects as non-lawyers.

Screen Shot 2015-01-01 at 14.14.35

As predicted, a significant effect of framing was found for both groups, as both non-lawyers and lawyers were much more likely to settle their claim in the gain scenario than in the loss scenario, though the effect for lawyers was less profound.

All parties involved in litigation, then, could benefit from a greater awareness of the biasing effect of framing, and as lawyers we should work to ensure that our clients’ decisions are not influenced by factors that ought to be irrelevant. Litigating in court involves substantial costs, uncertainty, and inconvenience if not stress or distress. If disputes can be settled satisfactorily out of court, then all barriers to mutually beneficial settlement – including framing effects – should be addressed.

References:

Belton, I. K., Thomson, M., & Dhami, M. K. (2014). Lawyer and Nonlawyer Susceptibility to Framing Effects in Out‐of‐Court Civil Litigation Settlement. Journal of Empirical Legal Studies, 11(3), 578-600.

Kahneman, D., & Tversky, A. (1984). Choices, values, and frames. American psychologist, 39(4), 341.

Plous, S. (1993). The psychology of judgment and decision making. Mcgraw-Hill Book Company.

Rachlinski, J. J. (1996). Gains, losses, and the psychology of litigation. S. Cal. L. Rev., 70, 113

 

The Conjunction Fallacy and the Conviction of John

The conjunction rule states that the probability of both A and B happening cannot exceed the probability of either A or B happening. The probability that I will roll a 6 on a die and flip heads on a coin, for example, cannot be greater than the probability that I will roll 6 on a die or flip heads. The conjunction fallacy occurs when this rule is violated.

Psychologists and Nobel prize winners Tversky and Kahneman demonstrated this with the case of Linda. Linda was described as “31 years old, single, outspoken, and very bright. She majored in philosophy. As a student, she was deeply concerned with issues of discrimination and social justice, and also participated in anti-nuclear demonstrations”. Participants, having read this description, were asked to rank the probability of various statements about Linda being true. These included:

(1) Linda is a bank teller
(2) Linda is a bank teller and active in the feminist movement

A large majority of respondents thought (2) was more likely than (1). This violates the conjunction rule, as the probability of Linda being both a bank teller and active in the feminist movement, cannot be greater than the probability of her being only one of these (a bank teller). The problem is that statement (2) seems more representative of Linda as described in the passage, and it mistakenly deemed to be more likely.

The conjunction fallacy has important consequences for the legal system, as it often appears in the construction of plausible causal scenarios. Tversky and Kahneman also studied responses to John P, described as a defendant with prior convictions for smuggling precious stones and metals. Respondents were asked to consider the likelihood that:

(1) John is a drug addict
(2) John killed one of his employees

Only 23% of respondents thought it was more likely that John was a murderer than an addict. However, when option (2) was changed to “killed one of his employees to prevent them from talking to the police”, around half of respondents thought he was more likely to be a murderer than an addict.

The rules of probability tell us is that the more general a statement is, the more probable it is, and that every detail added to a series of events makes that series less likely. Just as it is more likely that I will see a car outside my window tomorrow than a red car, and more likely that I see a red car tomorrow than a red car with a dog in the back seat, it is more likely that John is a murderer that that he murdered specifically to prevent an employee talking to the police.

The problem is that extra detail gives rise to a more fathomable scenario; condemning John without any evident motive may seem premature, and the additional information makes the proposition seem more salient, more comprehensible, and (mistakenly) more probable.

This mistake can be costly to defendants who are faced with eloquent, detailed, but unproven hypotheses about why and how they have broken the law. As lawyers, then, we must be careful to distinguish between causal scenarios that are supported by evidence, and speculative storytelling. In the latter, every speculative detail doesn’t just cloud judgement and complicate decision-making, it dramatically reduces the likelihood of the explanation being true at all.

References

Tversky, A., & Kahneman, D. (1983). Extensional versus intuitive reasoning: The conjunction fallacy in probability judgment. Psychological review, 90(4), 293.

Tversky, A., & Kahneman, D. (1981). Judgments of and by Representativeness (No. TR-3). Stanford University Department of Psychology

Status Quo Bias in the Law

In 1832, the Great Reform Act confirmed the exclusion of women from the electorate. In 1973, the Matrimonial Clauses Act confirmed the exclusion of same-sex couples from marriage. Thankfully, these exclusions were repealed in 1928 and 2013 respectively. The law evolves, and necessarily so.

Yet all of these changes have taken place slowly, and in the face of the pervasive resistance to change known as status quo bias: A cognitive error where one option is incorrectly judged to be better than another simply because it represents the status quo.

Several studies have confirmed the ubiquity of this effect. In the famous ‘mug experiment’, students were asked to fill out a questionnaire, and then rewarded with either a mug or a large chocolate bar. After receiving the gifts, they were then offered the chance to exchange their gift for the respective other option. Approximately 90% declined.  As soon as the ‘status quo’ was established either a mug or chocolate, students were happy to retain their original gift.

Though the choice of gift seems trivial, the  consequences of giving an undue bonus to the status quo can be significant: People fail to move their existing investments to more lucrative options, for example, or are resistant to changing their long-term medication for a more effective alternative.

The bias also exerts a powerful influence over the formulation and interpretation of the law. Consider the criminalisation of marijuana use in the Misuse of Drugs Act 1971 and the paucity of legal restraints on the adult consumption of alcohol and tobacco. Given the relative societal costs of these substances, this state of affairs makes seemingly little sense, and we have reason to suspect that status quo bias may be part of the problem.

One way to check is via the Reversal Test, a heuristic developed by philosophers Nick Bostrom and Toby Ord. The test posits that when a proposal to change a certain parameter is thought to have bad overall consequences, one should consider a change to the same parameter in the opposite direction. If this is also thought to have bad overall consequences, then the onus is on those who reach these conclusions to explain why our position cannot be improved through changes to this parameter. If they are unable to do so, then we have reason to suspect that they suffer from status quo bias.

The parameter at hand with drug laws is the criminalising of substances that pose a threat to public health and safety. Those who believe that we should not decriminalise marijuana should therefore consider if they would endorse a shift in the other direction; namely criminalising substances of similar or greater toxicity (such as alcohol), and imposing stronger penalties on transgressors. This position seems unlikely to be either popular or justifiable on public health grounds.

The Reversal Test is also illuminating when applied to other areas of law: If intensive factory farming, 40-hour working weeks, and labelling non-nationals “illegal” were not established norms, would we find that they should be?

Thorough its invisibility and ubiquity, the status quo bias is a silent threat to legislative  progress. Departing from the status quo where necessary, and recognising and resisting the  bias where it arises, will surely result in wiser, better motivated, and more responsive legislation.

References

Kahneman, D., & Tversky, A. (1984). Choices, values, and frames. American psychologist, 39(4), 341.

Gilovich, T., Griffin, D., & Kahneman, D. (Eds.). (2002). Heuristics and biases: The psychology of intuitive judgment. Cambridge University Press.

Bostrom, N., & Ord, T. (2006). The Reversal Test: Eliminating Status Quo Bias in Applied Ethics*. Ethics, 116(4), 656-679. Chicago.

Samuelson, W., & Zeckhauser, R. (1988). Status quo bias in decision making. Journal of risk and uncertainty, 1(1), 7-59.

Confirmation Bias and the Law

“The human understanding when it has once adopted an opinion […] draws all things else to support and agree with it” — Frances Bacon, 1620

Once we hold a particular view or hypothesis, we are more likely to search for, acknowledge, give credence to, and remember information that confirms it, regardless of whether that information is true. This phenomenon, known as confirmation bias, may be one of the most dangerous cognitive biases affecting decision-making in a judicial context.

Consider psychologist Peter Watson’s so-called 2-4-6 test. Participants were told that the experimenter had a rule in mind that classified three sets of numbers, and that “2-4-6” conformed to that rule. The subjects then proposed their own sets of numbers, were told whether it conformed to the rule or not, and were allowed to continue until they felt sure they knew the rule.

The rule was actually “any set of three increasing numbers”, but participants typically had a difficult time discovering this. They often believed the rule to be something such as “even numbers increasing” or “numbers increasing in equal intervals”, and the positive feedback received for sets following these incorrect rules strengthened their convictions. The fact that participants failed to even consider generating sequences seriously at odds with their focal hypothesis (such as 100-40-17) demonstrates the strength of confirmation bias.

As a form of motivated cognition, it affects all levels of belief formation and behaviour. If we dislike somebody, we give disproportionate weight to any evidence that they may be unpleasant, ignore evidence to the contrary, and interpret ambiguous evidence in our favour. At a wider level, we choose the friends, read the websites, and support the political parties we expect to confirm our existing views of the world.

The implications of this bias for the judicial system are multiple. Trials, for example, are frequently long and complex, and studies have shown that members of the jury often form their decisions early and interpret subsequent evidence in a way that supports their premature conclusions. This process has leads to a polarisation of attitudes among jurors, as each member of the jury becomes more and more entrenched in their position as the trial develops.

In the 2013 murder trial of David Camm,  the defense lawyer argued that Camm was charged with the murder of his family solely due to the effect of confirmation bias in the investigation. Every piece of evidence against him transpired to be inaccurate or unreliable, yet the charges against him were not dropped (though Camm was eventually acquitted).

The Central Park jogger case is another example. In 1989, five teenagers confessed to raping and assaulting a woman as she jogged through Central Park. They quickly retracted their statements, alleging that police had coerced their confessions. No physical or eyewitness evidence linked the suspects to the attack; in fact, semen recovered from the victim appeared to come from a single donor and did not match any of the five suspects. Nevertheless, a jury convicted all five of them.

 The detective’s and prosecutor’s statements made at the time demonstrated the intensity of their commitment to their theory of the case. They found all evidence that severely undermined their theory incredible, or modified their version of events to accommodate the new evidence within their original hypothesis. (In 2002, another man confessed to the crime. His DNA matched the victim, and a judge  overturned the original defendants’ convictions).

Of course, all lawyers arguably ‘exploit’ confirmation bias to some extent, as to build a case is to argue that the evidence at hand supports the conclusion dictated by the client. However, there is a clear difference between evaluating all evidence impartially in order to build a case consciously, and using selected evidence to justify a conclusion already drawn. Being able to objectively assess a situation is critically important to the practice of law. Engaging in case-building via confirmation bias without being aware of doing so may lead to overconfidence in the strength of the resulting case.

So, what can we do? Unfortunately, simply being aware of confirmation bias is not enough to mitigate its effects, and neither is it a matter of lacking intelligence. As studies have shown , while some cognitive biases do correlate with IQ, confirmation bias does not.

The most effective strategy is to develop a mind-habit of always ‘thinking the opposite’. Always consider the possibility that you might be (drastically) wrong, actively search for evidence that this might be the case,  consider how new evidence could  challenge as well as strengthen your beliefs, and be discerning about the information you choose to process.

References

Devine, Patricia G.; Hirt, Edward R.; Gehrke, Elizabeth M. (1990), “Diagnostic and confirmation strategies in trait hypothesis testing”, Journal of Personality and Social Psychology (American Psychological Association)

Myers, D.G.; Lamm, H. (1976), “The group polarization phenomenon”, Psychological Bulletin 83 (4): 602–627

Nickerson, R. S. (1998). Confirmation bias: A ubiquitous phenomenon in many guises. Review of General Psychology, 2(2), 175-220

Roach, Kent (2010), “Wrongful Convictions: Adversarial and Inquisitorial Themes”, North Carolina Journal of International Law and Commercial Regulation

Russo, J. Edward, and Margaret G. Meloy. “Hypothesis generation and testing in Wason’s 2–4–6 task.” Unpublished manuscript (2002).

Schanberg, S. H, (2002, November 26). A journey through the tangled case of the central park jogger. Village Voice, p. 36.

Stanovich, Keith E., Richard F. West, and Maggie E. Toplak. “Myside bias, rational thinking, and intelligence.” Current Directions in Psychological Science 22.4 (2013): 259-264.

© 2017 Natalie Cargill

Theme by Anders NorenUp ↑