Dan Kahan (Yale Law School, Cultural Cognition Project) has posted Cultural Metacognition on SSRN. Here is the abstract:
My concern in this Article is to explain the epistemic origins of theoretical disagreement in the study of law. Scholars who agree that the proper object of legal theory is to provide a correct account of the normative and positive foundations of law are still likely to disagree—intensely—about what theories will best achieve these ends. Does fairness or welfare best capture the normative point of law? Are judicial decisions best explained by the strategic interactions of legal officials (e.g., judges, presidents, senators) or are they explained by the norms of legal institutions and the explicit content of legally authoritative texts? Is the effect of tort law best predicted by neoclassical economics or by behavioral economic models? Disagreement about the correct answers to these questions is pervasive among legal theorists.
At first glance, it might seem that such disagreement doesn’t really require much explanation. Theoretical disagreements might be the result of incomplete evidence and the relatively early stage of development of relevant disciplines. As evidence accumulates and theories are refined, we might expect convergence in legal theory. But it turns out that this picture is as simplistic as it is intuitively attractive. Theoretical beliefs on seemingly unconnected subjects (the adequacy of rational actor models in predicting the effect of tort rules and the question whether preference-satisfaction provides ultimate value standards) tend to cohere in familiar ways. Patterns like this do not occur by chance. Instead, they are explained by what I call "cultural metacognition"--the systematic operation of cultural commitments at the metacognitive (or "theoretical") level.
This Article then develops an important application of the theory of cultural metacognition: metacognitive beliefs are themselves the product of cultural cognition. The Article reports the results of a pilot study that investigates the relationship between cultural evaluation of metatheoretical frameworks (or "meta-archetypes") and second order theoretical beliefs (beliefs about the truth or soundness of first order theory statements). The research reveals that relevant cultural differences between two distinct institutionally-structured micro-communities (one clustered in southern Massachusetts and the other clustered in southern Connecticut) explain differences in the acceptance of cultural cognition as a first-order theoretical framework. The broad implications of this result for legal theory and metatheory are then explored.