Zenker, F., and Dahlman, C. (2015e). Debiasing and Rule of Law. In: Feteris, E., Kloosterhuis, H., Plug, J., and Smith, C. (eds.). Proceedings of the Int. Conference Rule of Law, 25-26 June 2015, Rotterdam, The Netherlands (pp. xx-yy). The Hague: Eleven International (forthcoming, ISBN pending). Debiasing and Rule of Law FRANK ZENKER Department of Philosophy Lund University Sweden frank.zenker@fil.lu.se CHRISTIAN DAHLMAN Department of Law Lund University Sweden frank.zenker@fil.lu.se; christian.dahlman@jur.lu.se ABSTRACT: We discuss whether procedural or substantial rule of law-elements can be assigned a debiasing function, and thus ask whether the historical development of rule of law may be viewed as an institutionalized version of debiasing techniques. The conclusion is negative, for our discussion reveals the absence of reliable empirical knowledge on whether debiasing techniques in fact achieve their desired bias-mitigating effects. We conclude by pointing to future research needs. KEYWORDS: bias, debiasing, replicability crisis, methodology, rule of law 1. INTRODUCTION This article approaches ‘rule of law’ from the perspective of debiasing. Our aim is to discuss whether procedural or substantial rule of law-elements can be assigned a debiasing function, and particularly whether the historical development of rule of law may be viewed as an institutionalized version of debiasing techniques. The case is prima facie plausible since rule of law intendedly serves to avoid legal decisions that are arbitrary, unfair, ill- or plainly unreasoned. Rule of law thus seeks to avoid, or at least mitigate, “negative” decision making outcomes to which cognitive and social biases can contribute. After all, biases generally lead to a misalignment of (task- )behavior with a normative standard of accuracy, where accuracy presupposes perfect use of all relevant information; biases thus entail “cherry picking” on, or imperfectly processing all relevant information. Edwards & van Winterfeldt (1985), for instance, view “[l]egal mechanisms such as cross-examination and argument [as] excellent devices for promoting repeated consideration and reconsideration from multiple viewpoints of any intellectual issue at hand” (p. 270), and hold that “the most fundamental operational principle of decision analysis is that such iterations lead to wisdom” (ibid.). For a general argument along these lines, see Engel (2004). Biased reasoning and decision making, however, is (rightly) thought to occur also in present day legal contexts (see, e.g., Langevoort, 1998; Enescu & Kuhn, 2012, but compare Mitchell, 2002). It is thus rather clear that institutionalized rule of law is in a relevant sense still imperfect. Though “[f]ew would admit to making consciously biased decisions, especially ones motivated by negative biases,” as Irwin and Real (2010) also observe: