The Division of Cognitive Labour in Law

Law makes assumptions about the workings of the human mind, assumptions that are common in folk psychology, i.e. our unreflective way of understanding people's cognition and behaviour, but which are contradicted by scientific study of psychology. This chapter tries to flesh out part of the myths created by our folk psychological understanding of institutions and those who operate in them: the fictional cognitive abilities of the agents postulated by law. It focuses in particular on how the law often seems to overestimate the human ability to solve problems individually and underestimate the importance of the division of cognitive labour. I will call this set of assumptions cognitive perfectionism. I will distinguish between two aspects of cognitive perfectionism: the assumption that agents are endowed with perfect rationality, that they behave like a homo oeconomicus (an assumption often criticised in the literature), which I will call rationality perfectionism, and the assumption that agents are endowed with the ability to process extremely large amounts of information (an aspect less considered in the literature so far), which I will call knowledge perfectionism. These assumptions give a distorted picture of the goals law can reasonably aspire to and of the best possible means of achieving them. At the same time, they seem to function as regulative ideals somehow essential to, and maybe even inseparable from and desirable in, our legal practice.