We instead prefer a legal system with lots of specific rules, where in the end “reasonable” people are allowed to exercise “judgment” about how to “interpret” the rules. It sure looks like what we want is the appearance of constraining ourselves to follow rules, combined with the practice of arbitrary choice.

Why is your inference that we seek merely the constraint’s appearance more plausible than the straightforward alternative: we most prefer mild constraints? Telling against yours— imperfections of constraint don’t prove its absence.

If the opposite errors were suddenly to become common, enormous concern would be expressed, great resources would be spent, and we’d be willing to consider large institutional changes to eliminate them.

How do you know that?

[victim status l:l convict status].

If this juxtaposition precipitates one’s ambivalence, then, with your permission, I submit that our model asserts you are one in search of the attributes of greater truth. Justice should be such an undertaking.

Is it bias when we allow high status citizens greater behavioral discretion, than low status citizens? Is it bias when we allow juries discretion?

[famous actor murder conviction l:l famous obstetrician murder conviction]

Status is bias; that is its value.

Maybe we need to focus more on a question of when to overcome bias.

You could explode the second category into two subcategories depending on whether the contradictory systems are within a person, or within a society (i.e. on how you distribute “want” over “we”). Each member of a society individually might not want to acknowledge the rules, or the society as a whole might not want to acknowledge because this would alert some members that their system isn’t being used.

In this second subcategory, where different constituents want different rules, attempting to formalize them would surface (and necessitate a response to) the conflict. Formalizing them prior to legislation might prevent us from having a body of law. Recovering the implicit rules from the behavior, via statistical analysis, avoids putting this resolution on the critical path towards creating a legal system, and makes it easier to avoid the conflict — since then resolving the conflict isn’t any critical path; and since the recovered rules don’t have the same ontological status (it’s not clear whether the methods of any particular study are valid, as some of the comments illustrate); and since they don’t have the same epistemic status (many people don’t believe anything that touches statistics, as evinced by the arguments about statistical sampling for the census, or about the evidence about climate change).

Maybe these reasons apply to the intrapersonal case of “we don’t want to have to acknowledge them” too.

Is this not OK? Is it not absolutely normal and good? What else would one expect of a group’s behavior? I fail to see any problem here.

It sure looks like what we want is the appearance of constraining ourselves to follow rules, combined with the practice of arbitrary choice.

It would look more like that if anyone could come up with a purely rule-based way to decide legal cases that did not have obvious and undeniable problems that made it blatantly unacceptable to everyone. I’m referring to problems that are far more undeniable than racial bias, such as frequently jailing people universally acknowledged to be innocent of wrong-doing.

Since no one has been able to do that, the hypothesis remains plausible that our legal system is approximately as rule-based as we are able to make it without failing in such manifest ways.