Traditionally, perception can be defined as the organisation, identification, and interpretation of sensory information in order to represent and understand the environment where we interact.468 In this research, we construct perception as a wider process founded in sensory inputs. To conform our opinions about reality and guide our human behaviour, we go through a process of translating impressions into a coherent and unified view of the world around us. This process can be split into what Berstein labels as bottom-up and top-down processes:469 firstly, the agent processes inputs that transforms low-level information (stimuli) to higher-level information (bottom-up). Raw sensations are analysed into basic features, such as edges, colour, form, etc. After that, these features are recombined at higher brain centres, where they are connected with the agent’s concepts, knowledge and expectations (top-down). We recognise a red deer as a red deer because its features (four legs, size, grazing, etc.) match our perceptual category for ‘red deer’. In the top-down process, previous
467 This terminology reflects the work in the field of Daniel Kahneman that will be explored later in
this chapter.
468 S. Daniel Psychology (2011)
experience and knowledge of the world allows the agent to make inferences about the identity of stimuli, even when the raw information is poor. For that reason, a blur shape grazing in the dark forest can be recognised or identified as a red deer by a hunter because the stimulus occurs at a location where, according to his prior knowledge and experience, he would expect a red deer to be.
This top-down processing (also called data-based processing470) is based on knowledge. Knowledge in this context is any internal information that the perceiver brings to the perceptive process (memories). Contrary to the external stimuli (bottom- up) that provide the starting point for perception, the top-down moment condenses a person’s prior knowledge or expectations. This prior information is used to articulate a perceptual appraisal of the environment that surrenders us before action. The perceptual process starts with the stimulation of the external receptors and then the top-down moment gives the perceiver feedback based on previous experience or knowledge. These accounts of the perception process seem to reflect a standard that suggests that the aspects of perception work or fail equally for any perceiver agent. However, our perceptive abilities are also related to those qualities, features or duties related to our role as status-holders in our society. Thus, the previous knowledge or experience recognising a red deer is different for an experienced hunter than for a weekend tripper.471
Now that the features of the perception process have been briefly outlined and explained we can flesh out the argument that perception processing, founded on epistemological considerations, is divergent in institutional and brute facts: where brute facts are perceptible directly by human senses, institutional facts require a more sophisticated comprehension process. The perception of the qualities and features of
brute facts are usually actual and automatic; they require a sensorial perception or
observation that takes place with minimum memory or reflexive effort. Its perception is effortless because this processing happens outside conscious awareness. For example, the perception that we are watching a red deer is actual and automatic. The reason for this spontaneous recognition resides in the way the bottom-up moment affects recognition or awareness. When we meet, for example, a new young girl or
470 B E. Goldstain Sensation and Perception (2013) at p9
boy, we receive external stimuli that we contrast with prior categorised information to formulate a perceptual evaluation of the individual. The knowledge that we bring to the situation can be information acquired years ago or recently assimilated, but an important quantity of knowledge is learned from our childhood and becomes part of our knowledge base. This knowledge influences our abilities to place our environment into categories. One of the categories we appraise is her/his age. Even more precise information, like age confirmation by the girl herself, helps our brain to construct our identification of the person’s oldness. This categorisation process about brute facts continues with age and experience. Brute facts are not contingent, and they are perceived according with stable physical properties. They are not disassociated from the perception or belief of the perceiver because its existence does not depend on collective agreement about his existence or scope. For all these reasons, perception and recognition of brute facts are instantaneous.472
Not all the institutional facts used by the lawmaker in shaping criminal offences have the same level of normativity. Some graduation of institutional facts could be established. Some institutional facts just need a basic cultural or social evaluative judgement to be understood. Among this category of facts that require an extra-legal approach we can include concepts like immorality or dishonesty. To interpret them, the addressee of the norm should mainly use his vital experience. On the other hand, in the description of a criminal offence we can find institutional elements that require a more legal evaluative judgement. Some elements are regulated in private law disciplines like commercial or property law (e.g. ownership). Others are regulated by public law disciplines like administrative or constitutional law. Finally, some are regulated by the criminal law itself.473 However, beyond this categorisation what is significant here is that institutional facts require some complementary judgement of value and that its nature is variable. They are not perceptible merely through human senses like brute facts. The perception and comprehension of institutional facts always implies some intellectual exercise and a more sophisticated top-down process.
472 This affirmation could be, in some cases, not as categorical as defended in the thesis. Certainly, we
sometimes must take some time to study a person to work out how old they are; we may make an instant judgement but then we revise it as we look closer
473 See the Sexual Offences Scotland Act 2009, sections 12-15 where the meaning, extension, scope
Indeed, the perception of institutional facts is not effortless, spontaneous or automatic. It needs a complementary valuable judgment and an intellectual implementation. This judgment of value scrutinises the meaning of the institutional concepts in the social institutional interaction. The agent confronting an institutional fact needs to appraise the changeable and contingent function socially assigned and recognised to the fact. This judgement requires a more reflexive process of comprehension associated with the level of socialisation of the agent. Take for example the concept of ownership or consent in sexual intercourse. The apprehension of what belongs to me or what belongs to others requires a deep understanding of the role that property plays in our institutional reality; it requires, certainly, a more reflexive judgement from the agent. Sexual consent is another institutional fact that illustrates dissimilar perception from brute fact. There is a big difference between consensual sex and rape, but this difference has been reformed over time due to the contingent nature of institutional facts. As it was mentioned above, institutional facts are valid and binding as far as members of a specific community collectively believe they exist. They cannot subsist unless society members recognise them. But institutional structures are in permanent change and transformation. And this transformation is transposed to the institutional facts in order to make the new operational framework within the institution clear for its users. In his recent book
Making the Modern Criminal Law Farmer has highlighted, for example, how the
social and scientific understanding of what counts as sexual offending has changed in the last century.474 This transformation has been transposed, for example, to the institutional fact ‘sexual consent’. As a result, a former model of ‘implied’ sexual consent is now constructed as ‘affirmative’ consent.
At this point, it is relevant to introduce the influential proposal made by Kahneman, a Nobel Prize Winner in Economics. Both his dual model of thinking and its relation to bias are proposals applicable with (and supportive of) this part of the research. Concerning the two systems that the brain uses to process information, Kahneman adopts the dual model terms proposed by Stanovich and West:475 System 1
474 L. Farmer Making the Modern Criminal Law: Criminalization and Civil Order (2016) chapter 9 475 K.E. Stanovich and R.F. West Individual Difference in Reasoning: Implications for the Rationality
(fast thinking), is intuitive, unconscious, effortless non-statistical, gullible, stereotypical and emotional. It uses heuristic, mental shortcuts that focus on one aspect and ignore others. It solves, for example, 2 + 2. System 2 (slow thinking) is analytical, conscious, slow, controlled, requires effort, statistical and it is ‘costly to use it’. It solves, for example, 23 + 45. System 1 forms first impressions and easily jumps to conclusions. System 2 does problem solving and deliberations. System 1 runs automatically, creating snap judgements, impressions and suggestions for system 2 that is involved only when we encounter something unusual that system 1 cannot intuitively process or solve. Nevertheless, system 1 is a storyteller. It seeks to build a coherent plausible story relying on pattern-matching and assumptions regardless of their quality or quantity. Sometimes a small set of non-representative information allows us to interact in the world as far as we are confident in its accuracy. An example from Kahneman’s book will be illustrative: “A bat and a ball together cost $1.10 dollars, the bat costs $1.00 more than the ball. How much does the ball cost?”476 If the answer you come up with was that the ball must cost 10 Cents you have used system 1 processing. Your brain has substituted the “more than” statement with an absolute statement that makes the maths easier but wrong: 10 Cents + $1.10 = $1,20. At this point, your system 2 processing takes the lead calculating and you realise that the ball costs 5 Cents and the bat (at a dollar more) $1.05 for a total of $1.10.
Kahneman also exposes another relevant theory to explain human biases: we often make our judgements according to the information we have available without reflecting that there might still be things we do not know; we just emphasise what we do know. Kahneman even has an acronym for this phenomenon of jumping to snap deliberations on the basis of limited information: WYSIATI or “what you see is all there is”.477 We take decisions based only on the evidence in front of us without considering what information is missing. Therefore, the search of system 1 for a believable story based on available information can sometimes lead us to WYSIATI; making wrong judgements because we do not consider absent evidence, or we assign causal relationships where there is none, or simply we take decisions due to heuristics.
476 D. Kanehman Thinking Fast and Slow (2011) at p79. 477 Ibd at p118
Thus, system 1 can lead us astray if system 2 does not revise the judgement. These kinds of misjudgements are related to a type of bias frequently named the overconfidence effect. This effect is related to the extreme certainty of hindsight. Under this bias we promote excessive confidence that we know the truth. It also transfers excessive confidence in the accuracy of our beliefs. Overconfidence at the end is a miscalibration of personal probabilities where our confidence in our own judgements is bigger than the objective accuracy of those judgements.
It appears self-evident to connect brute facts with system 1 and wrong judgements on the basis of limited information (WYSIATI). As described above, brute facts are perceived automatically by a pattern-matching process. It will later be discussed how these connections and biases can affect false beliefs. For now, before expanding these arguments we need to consolidate the assumption that the perception process is different in both kinds of facts. However, this assumption does not by itself justify the critical quality unless it affects the cognitive condition of responsibility of the agent in dissimilar ways. Let me explain the undeniable reason whereby it does. The agent, before action, is aware of the reality that surrounds him. He additionally always has a base of previous knowledge acquired by his process of socialisation or experience. When confronting a particular situation, he acknowledges some factual context about the world around him (top-down processing). Over this previous knowledge the agent acquires new inputs before action that he assimilates in his deliberation process (bottom-up processing). It is this latent and updatable knowledge that should trigger in the agent the doubt or suspicion that his action requires that they should further increase this basic initial knowledge. If this is the case, the agent must search for more information or abort her on-going action or behaviour. Therefore, criminal responsibility would be attributed when, despite the agent’s base of previous and latent knowledge triggering in the agent the doubt that his action could be criminal, the agent does not use their capabilities to ascertain the truth, and they carry on with the action. In this case, the false belief does not exonerate the agent of criminal responsibility because he does not translate his doubts into further investigations. It could be deduced a contrario sensu that when the latent, previous knowledge is not enough to trigger in the agent the doubt that his action requires more inquiries, the agent is not criminally responsible. This conclusion is not as straightforward as it intuitively looks. This hypothesis will be considered later in
depth when the ECCR is put into practice. For now, and accordingly with the critical quality explained above, we are in the situation to conclude that the process of acquiring knowledge and making judgements is different for brute and institutional facts. As Kahneman illustrated, the perception and judgements of brute facts made by system 1 is instantaneous, effortless and involves the brain using heuristic techniques. This type of deliberative process is more prone to lead us to WYSIATI. The possibility of ignoring absent evidence is higher when appraising brute facts under system 1. As a result, it seems that, at least intuitively, a false belief about a brute fact must be easier to excuse than an error about an institutional fact that always requires deeper considerations. The evaluative judgement that an institutional fact demands makes it easier for the agent to trigger doubts that his action could be criminal. This argument supports the different model of attribution of responsibility for false beliefs about brute facts and institutional facts here presented. This is the aim of the next part where the ECCR would be applied first to false beliefs about brute facts and later (chapter 6) to false beliefs about institutional facts.