PROBLEM DEFINITION

1. Different market approaches and applications – Despite the efforts of the European Union (EU) and its Member States (MSs), significant differences remain in market approaches and applications for the connection and interconnection of offshore wind farms. These differences, spanning technical issues, market design, and legal aspects, lead to (legal) uncertainty and present a key obstacle to the further development of the offshore electricity system. The varying approaches make investment decisions challenging for wind developers, as the revenue model is not always profitable. Effective regulation of the transmission system and interconnection is essential to create an attractive investment climate for offshore wind developers. Belgium is no exception to this. Therefore, comprehensive research into the legal aspects of offshore transmission and interconnection, taking into account technical and economic conditions, is indispensable.

2. Main focus of the research – The research will primarily concentrate on the (inter)connection of the Belgian offshore grid, rather than the development of an integrated North Sea Offshore Grid (NSOG). It is essential to emphasize that, while a large number of international and EU rules must be considered, a substantial body of national rules may also justify a distinct Belgian approach. The aim is to develop academic insights that can support the elaboration of a more comprehensive framework to address the future problems and opportunities.

INTRODUCTION

In the previous chapter, I have explored how diff erent ethical theories, pertaining to well-established ethical outlooks, can provide diff erent approaches to a justifi cation for a moral duty for judges to enhance their cognition. I have concluded that the ethical theories analyzed generally support the enhancement of judicial cognition. But despite this support, I have also identifi ed ethical constraints, mainly concerning the safety and effi cacy of some interventions, that limit the scope of this moral responsibility. In this chapter, my goal is to examine whether a moral duty for judges to enhance their cognition translates into a legal one, and in what ways the current legal framework on judicial liability, professional conduct and human rights supports or rather hinders a moral duty from existing and being complied with. As I have explained in the previous chapter, a legal obligation refers to a responsibility that a person has on the basis of a prior agreement, promise or regulatory framework, such as the law (Vedder 2019). Legal duties derive their authority from established laws and regulations within a given jurisdiction, generally carrying enforceable consequences through the legal system. They may – but need not – coincide with moral duties.

I will begin this chapter by presenting the literature on a legal obligation for high-responsibility professionals to undergo cognitive enhancement since, as with a moral duty, it has been the focus of the scholarly discussion(2).

This book has explored the prospect of enhancing judicial cognition and posited a possible moral duty for judges to improve their cognitive capacities by various means. The impetus behind this inquiry stemmed from the realization, substantiated by a wealth of empirical evidence, that judges are susceptible to various implicit biases, which can subtly shape their perceptions, judgments, and decision-making processes throughout various stages of legal proceedings. Despite posing a threat to the impartiality and accuracy of judicial decisions, implicit bias remains largely unaddressed. Existing substantive and procedural rules designed to prevent arbitrary, partial, or inaccurate legal decisions primarily focus on the explicit manifestations of biases, neglecting to adequately address the negative eff ects of biases that operate beneath the level of consciousness, and which are not subject to direct introspection. To ameliorate this scenario, the enhancement of judicial cognition has been proposed in the literature. Considering the profound impact of judicial decision-making for litigants and society, and the potential for enhanced judges to mitigate the undue influence of implicit biases, the question of a possible moral duty for judges to enhance their cognition naturally emerged. Consequently, a rigorous analysis of the subject was warranted. In this concluding chapter, I summarize my findings for each of the previous chapters(1), provide some recommendations for addressing implicit bias in the courtroom that build on my analysis, and identify avenues for further research(2).

INTRODUCTION

In our attempts to understand the law, perhaps one of the most important questions one may ask is how judges decide cases, and which appropriate explanation can be used to guide or justify their decisions. This question and others fall under the scope of legal reasoning, and throughout the recent history of legal philosophy numerous and varied attempts to answer these issues have been made. Legal scholars have the intuition (or at least the hope) that there is something distinctive about the methods that judges employ to argue, reason and decide, that goes beyond the mere knowledge of legal rules that laypeople do not possess. They claim there are special modes of reasoning that are unique to the law, and attempts to describe precisely what distinguishes legal reasoning from reasoning in other spheres of human activity (e.g., scientifi c reasoning) have been manifold.

One possible way of defi ning legal reasoning describes it as the process of devising, reflecting on, or giving reasons for legal acts and decisions, or justifi cations for speculative opinions regarding the meaning of law and its relevance to action (MacCormick 2016). This defi nition highlights the two ways in which legal theorists understand what legal reasoning is. While, at first, it may seem like an easy question, simply consisting in reasoning about the law, or about how judges should decide cases, on closer inspection it becomes clear that both of these formulations are ambiguous, at least according to some theories of law.

Every day, judges are tasked with rendering decisions that carry profound consequences both for the individuals directly aff ected by them and for society as a whole. They can decide whether a person should be sent to prison and for how long, as well as whether they can await their trial in freedom or have an early release. Judges can determine child custody arrangements that profoundly influence family dynamics, and adjudicate civil disputes with far-reaching financial ramifi cations. They can decide whether an immigrant seeking asylum should receive it, or instead be sent back to their country of origin. At the highest levels, judges have the power to interpret constitutional principles and to determine important social disputes involving fundamental rights. These decisions not only aff ect present cases, but can also reverberate to the future through the doctrine of precedent. Overall, judges hold great power in our society, and in wielding this power, we expect them to act with objectivity and neutrality. We expect judges to reach and justify their decisions with resource to the authoritative legal sources, and to not be influenced by external factors that are irrelevant to the dispute.

However, as representatives of the Legal Realism movement noted already a century ago, the reality of judicial decision-making oft en fails to meet these expectations, with extraneous factors such as judges ‘ emotions, idiosyncrasies and preferences of various kinds having an impact on case outcomes. This book focuses on one specifi c extralegal factor that can influence judicial decisions, namely, implicit bias. Unlike overt prejudice and partiality, implicit biases are not subject to direct introspection, and people tend to not be aware of them.

INTRODUCTION

Consider the following scenario proposed by ethicist Thomas Douglas (2013), in which he describes a biased judge :

Douglas initially used this example to illustrate not only the possibility but also the moral acceptability – at least from a consequentialist point of view – of biomedical enhancement. But the example also raises a diff erent question: considering the availability of such a drug, does James have a duty to use it? In other words, is there an obligation for judges to cognitively enhance themselves? By which means? And on what basis? As discussed in Chapter 1 of this book, the psychological literature on decision-making has generally found that decision quality decreases as information load increases, and that people typically use heuristics to rapidly weed out possibilities as a mechanism to handle this load – a process that can introduce some biases. Besides the increase in the information load being processed, other environmental and personal conditions facilitating the occurrence of biases and leading to suboptimal decision-making were also presented in that chapter, including mental fatigue, stress, time constraints, and cognitive decline due to aging.