Monday, January 16, 2012
Confronting Cognitive Bias on the Bench
Having had some time to reflect on the latest decision from the Quebec Court of Appeal that rejects our motion to have the first-past-the-post voting system declared unconstitutional and while waiting to see if the Supreme Court of Canada will hear our appeal, I recently read Daniel Kahneman's best-selling book, Thinking, Fast and Slow.
It is a masterpiece detailing how heuristics and cognitive bias come into play in judgements and decision making. I can't help but think that the key to having a decision rendered on our behalf is to confront the cognitive bias we have been subjected at the lower courts. What follows is an analysis of how cognitive bias came into play in the judgment.
At first glance, it is somewhat disconcerting to have one's rational and empirical arguments that demonstrate first-past-the-post's glaring distortions of voting results to be dismissed without discussion by the simple maxim that it is not sufficient to show that the voting system creates distortions, even if it reverses the results of the popular vote and a political party that garners one million votes is denied any representation whatsoever.
In other words, it doesn't matter what evidence you present because the nature of your request requires us to declare that the voting system in place since confederation is not democratic.
Yes, that's it in a nutshell. Any voting system that allows a political party to assume the political power of the majority without having the support of the majority of the electorate is profoundly undemocratic.
It is at this point an affect bias enters into the deliberations. To render a judgement that deems that the electoral system is fundamentally undemocratic is to raise unsettling questions concerning the legitimacy of the system of governance in place. Indeed, this could be an undesirable turn of events that might impact upon the stability that we have known as a result of our political system.
Thereafter, a second cognitive bias, the aversion to loss, comes into play: better the devil you know than the devil you don't. Effectively, to declare the present voting system unconstitutional would force the Quebec government, the federal government, and the other provincial and territorial governments into the unknown, seeing that they would have to put an alternative voting method into place. This process could bring about some unintended consequences whose negative effects would outweigh the positive results of having better representation.
Doing a quick risk analysis, the judges could reasonably conclude that since no voting system is perfect and the one in place has served us well over the years, it is not worth the risk to force a societal change upon Canadians regardless of the opportunities for better governance that a new voting system might entail.
Finally, to dismiss the motion all that needs to be done is to perform a simple heuristic substitution: replace the the concept of democratic rule with the belief that the oligarchic rule that is presently in place is in fact democratic. If you tell a big lie often enough, people will believe it. That way, it can be shown that the present voting system is not discriminatory since the systemic distortions inherent to first-past-the-post are available for the benefit of the supporters of any political party. The ability to form a false majority is transferable. Live by the sword; die by the sword.
In closing, if we are to have our motion for a declaratory judgment granted, we will have to confront and overcome the cognitive bias we have experienced at the lower courts. Hopefully, the Supreme Court will afford us the opportunity.