‘In this Day and Age’: Social Facts, Common Sense and Cognition in Tort Law Judging in the United Kingdom
Tort law judging in the United Kingdom includes judicial ‘truth claims’ or ‘social facts’ about the world, society, and institutional and human behaviour. Although corrective justice and rights scholars assert tort law is autonomous and internally referential, social facts can be influential in tort decisions. While there is some evidence of judicial use of empirical research, many social facts are based on judicial notice, judicial common sense, and intuition. Social facts, often based on judicial common sense, play a role in tort judging. However, they can also be fertile ground for the introduction of cognitive bias and judicial error. The role of social facts in tort judging is not confined to ‘policy’ reasoning but includes social framework, context, and background. Emerging research on judicial cognition can help explain the nature and impact of common‐sense social facts. There is a need to consider potential responses to judicial use of social facts and judicial cognition.