Forthcoming "Fictional Minds. The Law’s Misrepresentation of Human Thought" (vol. 5, 2025, no. 2)

The theory and practice of law often rest on problematic assumptions about the functioning of the human mind.  For example, law traditionally presupposes that its addressees are rational and strategic agents, that they are motivated by rewards and sanctions, that, regardless of their IQ or cultural level, they are able to predict the legal consequences of their actions, and that they are always prone to perform these actions on the basis of cost-benefit calculations. In recent years, an important strand of legal philosophy has started to challenge these assumptions, relying on neuroscience and cognitive psychology. Legal provisions and doctrines usually presuppose folk-psychology, a very natural and commonsense way to think about thinking, one based on concepts such as intention, consent, will and belief, but which has turned out to often clash with the empirical findings. Empirical research consistently reveals that decision-making is not fully conscious, but also substantially intuitive and emotional, and constantly guided by heuristics and biases.  Stressing this clash, some scholars for example have questioned the very foundations of democracy, arguing that it rests on an overly idealized view of political agency, one that assumes citizens are rational, self-interested, and well-informed. Others have challenged the traditional concept of criminal responsibility, which is still often conceived as demanding some version of free will, a notion that is difficult to reconcile with the deterministic image of nature described by the empirical sciences.

Despite all these challenges, the law has shown remarkable resistance to revision, often persisting in its traditional assumptions as if they were in principle immune to empirical criticism.

Fictional Minds is a monographic section of Athena, vol. 5 (2025), no. 2, co-edited by Michele Ubertone and Giuseppe Rocchè. It brings together a range of contributions aimed at exploring the consequences, positive and negative, of the law’s tendency to rely a fictional rather than real minds. Can assumptions about the rationality of legal agents still be defended as transcendental categories or regulative ideals? Some legal assumptions may prove defensible, not because they are empirically accurate, but because they serve some important social functions.