Hanley

Morality Tales and Public Reason Balancing Public Morality and Autonomy in Law
By Michael K. Hanley

A junior paper submitted to the Department of Politics in partial fulfillment of the requirements for the degree of Bachelor of Arts Princeton University Princeton, New Jersey

Hanley 2

Introduction When the legislators of Congress assemble behind closed doors, we make several assumptions about the legitimacy of the processes and outcomes undertaken. For one, we assume that any bills passed and enacted by this assembly are established law even if we disagree with the merits of the legislation, we nonetheless regard the bills as binding. Further, we acknowledge the ability of these individuals weigh relevant values in order to collectively shape any restrictions and protections of our liberties, even though in many cases the individuals in question had been elected indirectly, through peers of different states or local municipalities. What is it exactly that gives the legislative bodies so much power in determining government policy with regard to our liberties? The obvious answer, that we elect them to do so, only serves to lead to further, less explored questions. In giving legislators the agency to act on our behalf, to what extent are they obligated to represent our diverse views? Is it possible to represent such a wide constituency with reasonable views, or is it more likely that legislators will fall back to their comprehensive doctrines and moral intuitions? Does the latter option compromise the legitimacy of the institution, even if it is taken instinctually? This analysis seeks to add to the discussion on this topic by applying affective theories of cognitive psychology to the framework of legal legitimacy in public reason in an experimental setting. Specifically, this experiment will use the disgust responses evoked though legal questions delegated to the states in order to determine if the status quo in legal legitimacy that reasons that are reciprocally justifiable among peers with reasonably different comprehensive views are the only ones acceptable in legal deliberation actually represents how voters approach legal questions.

Hanley 3

Theories of Disgust, Public Reason, and Legitimacy in Law Before considering how an experimental setting can contribute to the discussion of legitimacy in public reason, one must first understand how a consideration of affective theories such as disgust open up the standard of legal deliberation. To this end, I will first briefly formulate the idea of public reason as advanced by John Rawls. Addressing how affective theories in cognitive psychology, including the disgust response, seem to undermine the ability to reach a consensus through public reason alone, I will then turn to several ways by which political theories have sought to incorporate the disgust response into legal deliberation.

Rawls and the Idea of Public Reason In looking to argue for what establishes legal legitimacy, Rawls formulates the idea of public reason in discourse over policy matters. He begins this endeavor by acknowledging that a liberal society must acknowledge that it contains a number of diverse yet reasonable comprehensive doctrines with their respective conceptions of the good. Rawls notes that while some would want to claim that given the full resources of philosophical reason, there is but one reasonable conception of the good, that cannot be shown by the resources of a reasonable political conception of justice.1 Given this plurality of reasonable views, Rawls argues that the only way that government institutions can operate, while giving fair regard to all reasonable citizens, is under the criterion of reciprocity. Under this view, our exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their

1 Rawls, John. Political Liberalism. New York: Columbia Univ. Press, 2005. Pg 135, ftn 2.

Hanley 4

common human reason.2 By this principle, Rawls appeals to the rational capacities present in all reasonable citizens to create an overlapping consensus in legislation, indicating that reciprocally acceptable laws that govern rights and distribution are legitimate. In appealing to the capacity to rationalize, then, a special duty exists to not derive political reasons simply from comprehensive views, since the stability of public reason lies in its ability to appeal to this capacity that is shared by all reasonable members of the political community.3 Limiting public reason to discourse grounded in rationality seems to close it completely to the role of comprehensive doctrines and moral intuitions. Yet in a later work, Rawls acknowledges the occasional usefulness of comprehensive views in motivating discussion on a political issue. He later adds a proviso to his account of public reason, allowing comprehensive doctrines for the fulfillment of completeness in public discourse, under the condition that they be supplied and legitimated with a parallel public account.4 While this proviso opens discourse to comprehensive doctrines, legitimacy still rests on the ability to justify law with reciprocally acceptable reasons. Public reason, as advanced by Rawls, has a largely prominent character in our basic institutions. Schools are largely structured to provide this capacity to rationalize, think critically, and provide reasons for opinions, reflecting a value for this capacity to reason on the part of citizens. Legal decorum also poses a value on reason-based debate while citing Bible passages may not be prohibited, it is often criticized as ineffective in reaching a consensus.5 In fact,
2 Ibid 137. 3 Ibid 143. The argument of Rawls is too extensive to give justice in this brief survey. For the argument of the overlapping consensus and public reason in its entirety, see Chap IV, The Idea of an Overlapping Consensus, Ibid, pp. 133-172. 4 Rawls, John. The Idea of Public Reason Revisited. The University of Chicago Law Review. Vol. 64(3), Summer 1997, pp.765-807. Pg. 771. 5 Congress Debates Biblical Stance on Immigration. CNN News. Accessed 3 Apr. 2012. <http://religion.blogs.cnn.com/2010/07/14/immigration-debate-focuses-on-religion-ethics>. Here, CNN criticizes the debate for focusing on biblical grounds and not reaching legal consensus.

Hanley 5

research conducted into how the Christian right are relating to law has shown a growing need to give public reasons when in a legal setting.6

Affective Theories of Psychology and Consensus in Public Reason Recently, studies in psychology have focused on the widely accepted assumption that rationality dictates political behavior. Such a trend has lead to the growing prominence of studies on affective theories of politics. One school of thought, advancing a symbolic view of political behavior, argues that many choices are grounded in predispositional attitudes and beliefs attached to and transferred between objects. Symbolic politics theory emphasizes that this result is innate in development people acquire stable affective responses to particular symbols through a process of classical conditioning, which occurs most crucially at a relatively early age.7 These responses exist beyond rational and conscious thought in that they evoke gutlevel, affective responses.8 As these object-symbols emerge later on in life, the theory argues that each instance of the object, or even a related object, will evoke the same gut-level response, given that the conditioned connection between the object and the original affect was sustained in development. The prevalence of affective behavior in human decision-making has seen face time in legal procedures as well. One prominent example is the reasonable or adequate provocation standard for reducing a charge of murder to that of voluntary manslaughter. The reasonable nature of the provocation does not appeal to the rationality of the emotion, but rather whether the emotion is strong enough in the moment that a reasonable person would not have the capacity to
6 See: Shields, Jon A. The Democratic Virtues of the Christian Right. Princeton: Princeton Univ. Press, 2009.

7 Sears, David O. Symbolic Politics: A Socio-Psychological Theory Explorations in Political Psychology, 1993,

chap. 5, pp. 113-149, pg 120. 8 Ibid 133.

Hanley 6

reason against committing aggression.9 In such a case, we see that a mitigating circumstance grounded in affective behavior has had the power to create an exception to a law in a way, it is seen as an acceptable measure for when the law is to be applied.

Disgust, Moral Intuition, and the Law We have seen how affective behavior can take a place in judicial considerations. But does this phenomenon occur during the creation of law? To explore this question, we must consider affective reactions that take a role in informing moral intuitions. If these behaviors shape intuitions of right and wrong, then perhaps they would take a role in creating policies aimed towards a larger audience. The experiments of Jonathan Haidt suggest that the disgust response may be a candidate for this analysis. In a study that considered how individuals both advocate interference and universalize judgments across different socioeconomic settings, Haidt found that adults consistently favored interference in scenarios that evoked a disgust reaction versus those that were merely offensive 57.6% of adults favored interference for the disgust scenarios, while only 27% supported interference for the offensive cases.10 Haidt also finds that these disgust scenarios were more often universalized 48.3% of adults universalized their judgments on disgust cases, compared to 38.5% for the offensive cases.11 In a later work, Haidt takes his conclusions further in offering a social intuitionist account of moral behavior. To formulate this social intuitionism, Haidt first distinguishes between

9 Nussbaum, Martha. Hiding From Humanity: Disgust, Shame, and the Law. Princeton: Princeton Univ. Press, 2004. Pg. 41. 10 Haidt, Jonathan, Silvia Helena Koller, and Maria G. Dias. Affect, Culture, and Morality, or Is It Wrong to Eat Your Dog? Journal of Personality and Social Psychology. Vol. 63(4), 1993, 613-628. Pp. 619. Haidt also tests children, but for our purposes only the results for adults are relevant, as they represent the cohort that would be in the position to vote and shape policy. 11 Ibid 620. While these scenarios specifically mention private matters, the fact that the intuition-based judgments were universalized gives prevalence to the disgust response.

Hanley 7

moral intuition and moral reasoning by defining them as two distinct cognitive processes. He notes that intuition occurs quickly, effortlessly, and automatically, such that the outcome but not the process is accessible to consciousness, whereas reasoning occurs more slowly, requires some effort, and involves at least some steps that are accessible to consciousness.12 From here, Haidt argues that assuming the primacy of rationality in determining behavior is false, and offers several ways as to how focusing solely on rational capacities may overlook an importantly universal nature of the moral intuition process that also occurs when one makes judgments or solves problems. His depiction of the social intuitionist model is reproduced below.
Figure 1: The Social Intuitionist Model
13

Haidt begins this examination by noting that the mind conducts intuitive judgment and moral reasoning in a dual-process, and highlights that it is primarily when intuitions conflict, or when the social situation demands thorough examination of all facets of a scenario, that the

12 Haidt, Jonathan. The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment. Psychological Review. Vol. 108(4): 2001, pp. 814-834. Pg. 818. 13 As Haidt notes, the numbered links, drawn for Person A only, are 1) the intuitive judgment link, 2) the post-hoc reasoning link, 3) the reasoned persuasion link, and 4) the social persuasion link. Two additional links are hypothesized to occur less frequently: 5) the reasoned judgment link, and 6) the private reflection link. See Haidt 815.

Hanley 8

reasoning process is called upon.14 Given that the process of moral intuition comes first, Haidt explores cases that delineate the relationship between intuition and reasoning. From these cases, he notes that post hoc reasoning on moral issues that invoke comprehensive doctrines often resembles that undertaken by intuitive lawyers rather than intuitive scientists, given that people have a tendency to self-select to evidence that conforms to their moral intuitions.15 Further, he notes that such a priori justifications tend to stem from a pool of culturally supplied norms for evaluating and criticizing the behaviors of others.16 On this note, it would appear that post hoc moral reasoning not only self-selects to the intuitive judgment of the individual, but is bolstered by the prevailing norms of society as well. To further polarize the phenomena of moral intuitions and reasoning, Haidt concludes by considering MRI studies of subjects with damage in the brain sections associated with the capacity to affectively respond to moral situations, the prefrontal cortex. He finds that patients with prefrontal cortex damage show no reduction in their reasoning abilities. They retain full knowledge of moral rules and social conventions, and they know how to solve logic problems, financial problems, and even hypothetical moral dilemmas. When faced with real decisions, however, they perform disastrously, showing poor judgment, indecisiveness, and what appears to be irrational behavior.17 Such an examination supports his claim that moral intuitions may even be more closely related to behavior than reasoning.

15 Ibid 821. Haidt cites cases such as Kuhn (1991), (Baron, 1995; Perkins et al., 1991), and (Perkins, Allen, and Hafner, 1983). 16 Ibid 822. 17 Ibid 824, citing (Damasio 1994).

14 Ibid 820.

Hanley 9

Considering the fact that disgusting or otherwise offensive material has often seen restriction or outright censorship under the law,18 it seems appropriate to consider the relationship between disgust responses and law in response to this account given by social intuitionists. Does the dual process account better explain the responses to profanity and disgust? If so, does a legal setting constitute a social situation that demands thorough examination of all facets of a scenario? To address this inquiry, let us first consider the ways that political theories have worked to address the disgust response in the context of legal deliberation. As was suggested before, liberals would take the concept of disgust in consideration within the context of public reason. While Rawls does not make explicit mention of disgust, it would not be difficult to imagine how the response would be treated, given the constraints of reciprocity and public reasons. Since the content of disgust would have a difficult time securing reciprocity among reasonable citizens, it would be reasonable to say that Rawls would not see disgust-based legislation as legitimate. While his proviso would allow for a consideration of disgust in legal discourse, it would do so insofar as it motivates more reciprocally justified reasons for prohibiting the activity in question. Martha Nussbaum further addresses the question of disgust in a legal setting. In her Hiding from Humanity, Nussbaum notes that disgust often stems from repulsion towards the thought of decay, and thus may very well be a biological response aimed towards steering us from danger.19 Despite this possible benefit of the disgust response, Nussbaum emphasizes how, in practice, policies based on disgust have been used throughout history to exclude and
18 For example, obscenities on television, MPAA age restrictions on movies, and regulation of video game sales, often undertaken with paternalistic aims in mind. The overlap that often occurs between obscene and disgusting in these cases makes it even more crucial to examine this relationship. 19 Nussbaum 171.

Hanley 10

marginalize groups or people who come to embody the dominant groups fear and loathing of its own animality and morality.20 As such, Nussbaum calls for a hard line against legislating on disgust, noting that it hides us from our humanity. Disgust, she argues, has no legal value; the appeal to disgust would be better replaced by other notions, especially notions of damage or harm, and by a search for evidence of such harm.21 The liberal position on disgust differs sharply from that taken in conservative theory. In general, conservatives contend that liberals overlook the impact the individual autonomy may have on the sense of public morality within a community. Individual action, when contains features offensive to public interest, harms public morality, and thus government and societal institutions have an interest in upholding this morality of the community.22 Within conservative theory, academics address this concept of public morality in different ways. Lord Devlin, one of the first to regard disgust in the context of public morality, holds that public morals lead to social cohesion, a basic value that secures the survival of a community.23 With this exaltation of social cohesion, Devlin argues that activities that evoke the disgust response would serve to undermine this cohesion, and would thus represent a threat to the security of a community. From here, Devlin contends that any expression deemed disgusting by the reasonable man would erode societys capacity to function, and would thus warrant legal intervention.24

20 Ibid 14. 21 Ibid 126. This claim, she notes, opens the door for disgust to be used in the narrow sense of evaluating

nuisance law, where the activities of one party spill over and create an interference with another partys enjoyment of their own property. 22 George, Robert. The Concept of Public Morality. The Clash of Orthodoxies. Wilmington: Intercollegiate Studies Institute, 2002. Pp. 94-95. Here, I present Georges argument for public morality as an introduction to conservative theory. I present his use of it in a more nuanced argument for natural law below. 23 George, Robert. Legal Enforcement of Morals. Making Men Moral. New York: Oxford Univ. Press, 1995. Pg. 53. 24 Nussbaum 78.

Hanley 11

Robert George, in his formulation of natural law, takes a different approach in regarding public morality. While George would agree that social cohesion is an intrinsic societal value,25 he would contend that legitimacy in the specific laws centers on being able to derive some moral truth from the legislation. 26 Legitimacy in law does not rest solely on the virtue of aiming towards social cohesion, and it is on this point that George departs from Devlins theory. This natural law view holds that these moral truths can be reasoned out, and that this reasonability further legitimizes policies aimed towards upholding a public morality.27 With reference to disgust, George would allow that disgust serves as a natural reaction, indicative of the grosser forms of vice that criminal law ought to prohibit.28 Thus, while disgust in Georges view may serve as indicative of prohibitive activities, legitimate legal action requires that these prohibitions address true immoralities that can be reasoned out under the view of natural law. Aside from in the context of liberal and conservative political theories, disgust has seen mention in other forms of reasoning about government policy. Leon Kass, former chair of the Bioethics Council for the Bush administration, argued that unlimited autonomy actually undermines political liberalism, as it would promulgate a world in which everything is held to be permissible so long as it is freely done, in which our given human nature no longer commands respect.29 In response to this concern, Kass argues that repugnance has an inherent wisdom that underlies all rational argument. In this sense, he acknowledges the dual-process model of social intuitionists, and goes further to claim that revulsion gives us access to a level of the personality that is in some ways deeper and more reliable than argument.30 Thus, the disgust response, in
25 George 68-69. 26 Ibid 71. 27 Ibid 72, 78. 28 Ibid 72. 30 Ibid 80. 29 Nussbaum 79.

Hanley 12

Kasss view, is indicative of activities that run counter to a deeper respect for the dignity of human nature, and thus warrant legal prohibition. On yet another side of the debate, the disgust response has been attributed a progressive function. As Dan Kahan argues, disgust can serve as indicative of the changing values of a society. Specifically, Kahan contends that disgust, while unable alone to render self-regarding acts illegal, can be useful in establishing new, nontraditional values by tracking any shifts between values in a political community.31 With this formulation, Kahan mainly aims to push back against the popular claim that disgust can only serve as a legal tool of repression. In terms of criminal laws, Kahan grants that the disgust response can serve a narrow role in adjusting sentences, highlighting the cruelness of a crime or any mitigating circumstances that would be acceptable within a given political community.32 Overall, it seems that the political theories delegate different roles for the disgust response. While more liberal theories would argue that legislation based on disgust hides us from our humanity and represents a nonreciprocal infringement on autonomy, socially conservative theories would entertain a consideration of disgust, allowing that its extreme forms may serve as an indication of the moral truths of a community for which a legislature should be responsive. In most cases, rationality still takes prominence in legal deliberation. However, the important division between these theories is the manner by which they allow disgust to guide our reasoning. While liberals would assume that disgust undermines autonomous choices and reciprocity in law, conservatives would contend that autonomous choices must be held against public morality, and disgust is often indicative of activities that offend this value.

31 Ibid 84. 32 Ibid 85.

Hanley 13

As useful as these theories are in considering how legislatures ought to regard the disgust response, they do little to acknowledge the way that individuals actually approach disgust in a legal forum vis--vis a moral setting. In fact, there has been little research into this question. Haidts experiment suggests that individuals universalize the disgust response more often than merely offensive material. Another study into disgust has found that individuals tend to reject an unrelated status quo when subjected to disgusting stimuli.33 While such studies may suggest that disgust-based behavior may carry over into the political sphere, a concrete connection has yet to have been made.

Morality Tales and Public Reason This study seeks to add to both the psychological and political discussions on how disgust relates to legal legitimacy. It modifies the procedure used by Haidt, controlling for the setting for creating disgust-based judgments rather than the socioeconomic status, cultural context, or age of the subjects. It also focuses on a subject cohort that is particularly in a position to engage in political action and elect legislators. By conducting this experiment, I look to add an empirical dimension to several pertinent topic areas. The first set of questions turns on the issues of offensiveness and public morality. Do openly offensive activities create a public harm that must be taken into account? How do citizens approach reconciling this issue with fundamental liberties, and how do they expect this process to be done in a legal setting?
33 See: Han, Seunghee, Jennifer Lerner, and Richard Zeckhauser. The Disgust-promotes-disposal Effect. Journal of Risk and Uncertainty. Vol. 44, Feb. 2012, 101-113. In these experiments, subjects were given an unidentifiable box of office supplies, and shown an disgusting video clip unrelated to the present possession. The investigators found that when asked to change their gift for another one, 51% of disgusted people opted to switch, while only 32% of subjects without the video clip did, suggesting a bias against status quo situations in the presence of disgust.

Hanley 14

More broadly, this experiment seeks to provide empirical data on how citizens conceive and relate to legal processes in general. Does the politically engaged citizen view legal discourse as a forum to rationally engage moral intuitions? Or is the legal setting seen as a podium to advocate the norms of a moral community? Given that members of diverse moral communities elect our congressional legislators, what expectations do these members have of these national figures? The results of this experiment will have much to contribute to how citizens view legal legitimacy.

The Sample As with Haidts experiment, this study uses groups of 30 individuals for each controlled group. Since this experiment controls for only one variable, a moral setting vis--vis a legal setting of applying disgust-based institutions, the interviews were conducted with 60 individuals in all.34 With assistance of the Princeton Survey Research Center, the two groups of 30 individuals were randomized across factors such as socioeconomic status, gender, religious affiliation, and race. A brief demographics survey was conducted at the end of the experiment to confirm this randomization. The demographic statistics are presented in Appendix C. The participants in the survey are all Princeton University undergraduates, all U.S. citizens, and all over the age of 18. Using such a readily available sample group has several immediate benefits. As college students at a top-tier postsecondary institution, this cohort has demonstrated a strong ability to perform to the standards and values of citizenship promulgated by elementary and secondary schools in the United States. Using such a cohort focuses on a section of the participatory population that has the capacity to participate as a citizen in an
34 Haidt interviewed 360 participants in all, but under the same formula. Controlling for age and socioeconomic status across three culturally diverse regions, Haidt had to reach out to [30 x 2 x 2 x 3] = 360 subjects.

Hanley 15

informed manner and employ critical thinking skills to reason out questions of political importance. Using such an immediate population does not come without its drawbacks. Focusing on a more politically engaged population may skew the results toward a position that favors a more public reason framework, even though such a tendency may not represent the population at large. I will keep this possibility in mind, as the experimental setup will track the tendency to give public reasons across both groups. Specifically, the analysis of the results will focus on the responses between groups rather than within. Another possible issue concerns the socioeconomic representation of the sample. On average, the Princeton undergraduate belongs to a higher socioeconomic class when compared to the average American citizen.35 Haidts experiment found SES to be correlated with a propensity to give autonomy-based reasons when given a disgust-evoking scenario, reasons more consistent with the idea of public reason.36 However, this experiment gets around this issue in part by opening the scenarios up to a public setting. While Haidt focused on private moral actions that evoked a disgust response only on part of the participant, the scenarios to be presented invite a consideration of public morality by invoking a second party that witnesses and is offended by the disgusting activity.

The Procedure In this experiment, sixty Princeton undergraduates were randomly assigned into one of two groups the control group and the experimental group. The control group of participants

35 Intuitively evidenced by high tuition, combined with recent University attempts towards SES equality with an extensive expansion of the Financial Aid program. 36 Haidt 619.

Hanley 16

was asked to read four scenarios that depicted disgust-evoking yet harmless activities.37 While reading the scenarios, the participants were monitored for a visual or verbal disgust response. After having read the scenario, the subjects were asked five probing questions in order to elicit their moral intuitions in five categories: evaluation, justification, harm, bother, and interference. The questions are as follows: (a) Evaluation: What do you think about this? Is it very wrong, a little wrong, or is it perfectly OK for [act specified]? (b) Justification: Can you tell me why? (c) Harm: Is anyone hurt by what [the actor] did? Who? How? (d) Bother: Imagine that you actually saw someone [performing this act]. Would it bother you, or would you not care? (e) Interference: Should the actor be stopped in any way? 38 The responses for each individual were recorded on a premade evaluation form. As with the experiment conducted by Haidt, responses were coded into a number of widely used categories.39 For example, responses to the question focused on justification were coded as one of five responses: ethics of autonomy, ethics of community, ethics of divinity, norm statement, and other. The functions of this coding process will be further explored in the context of the results. The experimental group, also consisting of thirty Princeton undergraduates, was given the same scenarios to read. As with the control group, this latter cohort was monitored for displays of visual or verbal disgust. Following the questions, the experimental group was also given a series of probing questions. However, the questions given to this latter group differ in that they put the subject in a legal setting, in a position to create legislation on the issue. The questions are as follows:
37 For the scenarios in their entirety, please consult Appendix A. By harmless, I for now mean to say that the activities in of themselves do not physically harm any other parties. Whether or not emotional or psychological discomfort constitutes harm is a question that will be pursued in the results section. 38 These questions replicate those used by Haidt, pg. 617. 39 For a copy of the evaluation forms, consult Appendix B.

Hanley 17

(a) Evaluation: You are currently in Congress, and are in the position to pass a bill that would prohibit [case act, generalized] on the national level would you support or reject the bill? (b) Justification: In responding to the bill, you now have the floor to provide your constituents with reasons for/against the bill. What would you say? (c) Harm: Another representative takes the floor to address the bill. His speech emphasizes that [act] does not harm any parties involved, and that the act may have actually been beneficial to some parties. How would you respond? (d) Bother: Imagine that you actually saw someone [performing this act]. Would it bother you, or would you not care? (e) Interference: Congress now has the opportunity to vote on the bill. Would you vote to prohibit [activity]? These reframed questions are significant in several ways. For one, they are substantively the same as the questions given to the control group, having been formed from the same categories. Significantly, these questions do motivate the subject to think about these issues in a legal context, despite the fact that the disgust response, as Haidt has argued, evokes moral intuitions. Overall, this experimental setup seeks to control for the setting in which one encounters the disgust response. As such, any differences between the two groups will demonstrate to what extent a legal setting conditions how individuals approach moral issues. In doing so, this experiment isolates the special duty formulated by Rawls and seeks to give it a positive evaluation. When subjected to issues that evoke moral intuitions, do individuals actually shelve these responses in order to provide public reasons in a legal setting? Results Given that the variable for which this experiment sought to control was how the specific setting in which the disgust response is experienced effects the judgment, let us examine the

Hanley 18

results of the five questions asked between both the experimental group and the control group. But first, it is important to note that the four cases presented provoked the disgust response asymmetrically, as depicted below.
Figure 2: Frequency of Disgust Response, By Case40

Case Public Exposure Incest Eating the Family Pet Sexual Profanity

Visual Disgust 5 78.3 96.7 70

Verbal Disgust 0 11.7 43.3 13.3

As the table suggests, we differentiated between verbal and visual disgust responses. While the latter indicates simple means of expressing discomfort such as the raising of eyebrows, a grimace, a shifting of posture, a covering of the mouth, or other similar actions the former depicts the higher threshold of disgust, as indicated by actions such as gasping, grunting, or even making direct utterances such as gross, or disgusting. In tracking how the disgust response figures into legal procedures, it is important to keep in mind the extent to which this response was a factor in each case. The fact that the breastfeeding case, Public Exposure, did not evoke the disgust response provides us with an additional measure of comparison between the cases. Evaluation As previously suggested, this question was intended to elicit the intuitions of the participants in response to each of the scenarios. While the control group was simply asked a right or wrong question, the experimental group was put in a legal setting, being asked to vote for or against a bill that would prohibit the disgusting action on a national level. This difference not only changes the setting in which the intuitive decision is made, but implies a universalization of said intuition. The responses of both groups are presented below.

40 All table values, unless otherwise stated, are represented as percentages.

Hanley 19
Figure 3: Evaluation, By Experimental Group and Case

Control Group Case Evaluation _ . Very Wrong A Little Wrong Perfectly OK Public Exposure 3.3 60 36.7 Incest 13.3 66.7 20 Eating the Family Pet 26.7 56.7 23.3 Sexual Profanity 3.3 86.7 10 Experimental Group Case Evaluation . Support Prohibition Reject Prohibition Public Exposure 53.3 46.7 Incest 30 70 Eating the Family Pet 46.7 53.3 Sexual Profanity 76.7 23.3 A simple comparison between both the groups, as well as with Figure 2, shows that the intensity of disgust is not correlated with a propensity to prohibit in a legal setting (p > .05). Yet even aggregating Very Wrong with A Little Wrong in the control group does not yield a clear relation, as the case most allowed in the moral setting, the Public Exposure scenario, was the case that experienced the second largest frequency of prohibition. Another factor must have influenced these results. Perhaps this factor may revolve around the fact the participants in the legal setting took much longer to state their intuitions, suggesting an invocation of reasoning to check the accuracy of the disgust-based intuition.41 To further examine this, let us turn to the other questions. Justification Perhaps the most revealing question would be that which elicits the moral and legal reasoning of the participants. In responding to this question, subjects were asked to provide their

41 On average, evaluation responses of the control group were instant, while responses to this question in the experiment group took much longer, in most cases over a minute.

Hanley 20

justification for the evaluations given in the previous question. As before, the experimental group was put in a legal setting, being told that they were to give a speech to other state representatives in order to address the bill. As noted above, the responses to these questions were coded in one of five ways: (i) ethics of autonomy citing the right or liberty to perform the action in the scenario, (ii) ethics of community42 citing the offensive nature of the activity and how said offense harms outside parties, (iii) ethics of divinity how the action may run against religious convictions, (iv) a norm statement citing a tautological statement such as thats just wrong/disgusting, with all other responses being categorized as (v) uncodeable.43 The responses given in both experimental settings have been summarized below.
Figure 4: Justification, By Experimental Group and Case44

Control Group Case

Ethics of Community 56.7 23.3 46.7 73.3 Justification Ethics of Divinity 0 3.3 0 3.3 Ethics of Community 53.3 23.3 40 76.7 Justification Ethics of Divinity 0 6.7 0 0

Public Exposure Incest Eating the Family Pet 40 Sexual Profanity 23.3 Experimental Group Case . Ethics of Autonomy Public Exposure 46.7 Incest 70 Eating the Family Pet 53.3 Sexual Profanity 20

Ethics of Autonomy 43.3 73.1

Norm Statement 0 0 0 0
`

Uncodeable 0 0 13.3 0
,

Norm Statement 0 0 3.3 0

Uncodeable 0 0 3.3 3.3

42 An important distinction must be made between ethics of community and public reasons. While justifications framed in ethics of community better approach the threshold of public reasons by inviting a consideration of harm, it would appear that the content of the this harm, offense against social taboos, would not be as reciprocally justifiable in liberal theory as would basic values of autonomy and respect. 43 A similar measure was taken in the original experiment conducted by Haidt. 44 Note that the coded justification represents the one ultimately upheld by the participant, not the ones cited in considering the issue.

Hanley 21

As suggested in the experiment setup, this question seems most relevant to the main purposes of the experiment, as it elicits the approach that citizens take in justifying cases in both moral and legal settings. Yet, as indicated by the results, these approaches track one another quite well, and the specific setting seemed not to change the way that the subjects approached the issue. Further, a comparison with Figure 2 finds no correlation between the level of disgust shown and the type of reasons given in support or opposition of prohibition (p > .05). These relationships strongly suggest the presence of some outlying factor that is influencing the way that the participants have approached these scenarios. Harm Perhaps this phenomenon can better be explored with a discussion on how the participants viewed the question of harm in these scenarios. As suggested by Haidt, the activities in question do not evoke physical harm, and this fact should not change if the scenario were moved to the public setting. Nussbaum would go further to say that disgust-evoking activities, in that they represent reactions that hide us from humanity, would only evoke harm insofar as we allow them to the harm experienced would have no intrinsically moral character on which we could base legislation.45 With these claims in mind, consider the responses given to the question of whether harm occurred in each scenario, reproduced below.
Figure 5: Harm, By Experiment Group and Case

Control Group Case Public Exposure Incest Eating the Family Pet Sexual Profanity 45 Nussbaum 126, 171.

Anyone Harmed? Yes 86.7 33.3 73.3 90

No 13.3 66.7 26.7 10

Hanley 22

Experimental Group Case Public Exposure Incest Eating the Family Pet Sexual Profanity

Anyone Harmed? Yes 90 43.3 83.3 93.3

No 10 56.6 16.7 6.7

As these figures demonstrate, the participants overwhelmingly believed that these scenarios inflicted some harm. A quick comparison with the participant demographics, presented in Appendix C, shows that this sentiment was not exclusive to conservatives, who comprised only 41.7% of the participants. In fact, the legal setting provided a slightly increased propensity to claim that some harm had been done, even when the scenarios themselves had not changed between the two experiment groups. When compared with the results of Haidts experiment,46 the frequency of harm in this experiment sees a sharp rise. What explains this phenomenon? Recall that, in order to adequately consider these issues in the legal setting, the scenarios were moved to the public sphere. Rather than simply breastfeeding a child, the mother in the Public Exposure case chose to conduct this behavior while commuting on public transportation. The couple in the Sexual Profanity case left the shades open, forcing any incidental onlookers to witness the intercourse that ensued. While these two cases had a more forceful impact on the public, the other two were quite limited the Incest case involved a couple of friends being told about the incestuous experience after the fact, while the Eating the Family Pet case only offended the neighbors who stumbled upon the dinner while in the familys home. While the two groups were not designed to test the extent to which the participants felt a public harm had occurred in each scenario, the responses to the follow-up question of Who was harmed? were overwhelmingly
46 Haidt 618. Here, Haidt reports that 33% of participants cited harm in the Dog scenario, while 36% of adults noted that the incestuous siblings were actually harmed.

Hanley 23

met with responses such as whoever was offended, or whoever did not want to witness that. It seems clear, then, that harm was construed as the extent to which the activity in question offended any non-consenting parties in public. This explanation nicely tracks the frequency of ethics of community responses given in Figure 4. As suggested, justifications that fell under ethics of community were given more often in instances where the scenario had occurred in a more public setting, and thus had a potential of harming more non-consenting parties. Bother The fourth probing question concerned the extent to which the participant was bothered by the activity presented in each scenario. As such, the responses given in the moral case should correlate with the frequency of the disgust response. The responses, depicted below, show that this is indeed the case.
Figure 6: Bother, By Experiment Group and Case

Control Group Case Public Exposure Incest Eating the Family Pet Sexual Profanity Experimental Group Case Public Exposure Incest Eating the Family Pet Sexual Profanity

Bothered? Yes 3.3 70 93.3 56.7 Inform Authorities? Yes 0 0 30 6.7

No 96.7 30 6.7 43.3

.

No 100 100 70 93.3

With the experimental group, the question was reframed to capture whether or not the participant was bothered to the extent that they would seek to alert public authorities. While the most disgust-evoking scenario did garner the most affirmative responses, the overall correlation does

Hanley 24

not have statistical significance, likely due to the high threshold of bother required by the question.47 Interference This final question given to the participants was meant to elicit their final judgments on the issue after having considered their intuitive judgments, the justification these judgments, and a consideration of whether harm had taken place. As such, the responses to these questions, when compared with the Evaluation responses, will suggest the consistency of the intuitions between the two settings. The results are summarized below.
Figure 7: Interference, By Experiment Group and Case48

Control Group Case

Yes, Extreme 16.7 0 6.7 3.3

Public Exposure Incest Eating the Family Pet Sexual Profanity Experimental Group Case Vote to Prohibit? Yes Public Exposure 53.3 Incest 30 Eating the Family Pet 46.7 Sexual Profanity 76.7

For Interference? Yes, Moderate 40 26.7 43.3 63.3

.

No 43.3 73.3 50 33.3

No 46.7 70 53.3 23.3

Overall, the striking consistency of responses in the experimental group suggests that the

intuitive responses given did engage the reasoning processes, as had been suggested above.

47 Indeed, in responding to the question, many participants noted that they would prefer to tell the guilty party to be more considerate before alerting any public authority figure. 48 For the control group, I differentiated between moderate and extreme interference in response to the diverse suggestions given in response to how the offending party should be addressed. In general, moderate interference called for a simple request that the offending party be more courteous in the Public Exposure case, a moderate intervention would be simply requesting that the mother use the restroom to breastfeed. Meanwhile, extreme interference called for an immediate revocation of rights being arrested or kicked from the train in that same example.

Hanley 25

Indeed, the legal setting does seem to constitute what Haidt calls a setting in which the social situation demands thorough examination of all facets of a scenario.49

Discussion Empirical Side of Disgust and Legal Legitimacy In light of these results, let us now specifically consider in turn the two topic areas for which this experiment sought to provide an empirical analysis: (i) the extent to which disgust in the public arena creates a value of public harm, and (ii) how citizens conceive the role of reasoning to address conflicting values in the legal setting.

Disgust, Offense, and Public Morality As the results in Figures 4 and 5 indicate, the extent to which participants provided an ethics of community reason for prohibition depended on the extent to which (i) the scenario forced outside, non-consenting parties to witness the activity, and (ii) the scenario presented an activity that could be construed as offensive.50 An important point here is that, rather than providing a norm statement, participants in both groups reframed their justifications in terms of public harm, a move aimed towards providing a public reason that would underscore the immorality of the activity cited in each scenario. As aforementioned, the affirmation of harm in each scenario occurred across political ideologies, implied by the high frequency of affirmative responses in Figure 4 when compared against the roughly even distribution of ideologies among the participants.

50 I use offensive instead of disgusting here since, as Figure 2 indicates, participants were generally not disgusted by the case of breastfeeding. Instead, it seemed more relevant whether or not the scenario presented a 3rd party has having been offended by the activity, a factor that had been suggested in the previous discussion on harm.

49 Haidt 820.

Hanley 26

This result carries several empirical implications for the theories on disgust. For one, individuals across the political spectrum seem to recognize some form of public morality as a value to be taken into account when forming moral and legal judgments. While the extent to which the occurrence of a public offense weighed in on the final judgment depended on the individual, the fact that participants weighed this consideration lends support to Georges claim that there exists a sense of public morality that, in cases involving grosser forms of vice and offense, can override the value of autonomy in a legal setting. Such limitations of basic liberties have seen face time in United States jurisprudence, most notably through the Miller test in the Miller v. California decision, which limited the freedom of the press to prevent public harm.51 These considerations lead to another implication for more liberal theories of disgust. Nussbaums critique of disgust in law rested on an idealization we would one day form a society of citizens who admit that they are needy and vulnerable, and who discard the grandiose demands for omnipotence and completeness that have been at the heart of so much human misery, both public and private.52 While ideal theory would typically motivate policy reform in practice, it seems that the norm on disgust has instead settled on public offense as a legitimate value on which to base legislation. Yet if public offense, strictly speaking, is not as reciprocally justifiable among citizens as the values of autonomy and respect, then does legislating based on public harm undermine the legitimacy purported by a legal setting that puts primacy on public reason? This question necessitates a more systematic examination on how citizens view moral and legal reasoning.
51 Here, Justice Warren Burger upholds that The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. See Miller v. California, 413 U.S. 15, 24 (1973). 52 Nussbaum 17.

Hanley 27

Legal Legitimacy The Relationship Between Moral and Legal Reasoning How do citizens relate to the law? Most of the literature on the topic has suggested that moral reasoning serves as a heuristic for judgments in the legal setting, often with disastrous results.53 Given the results of this experiment, I argue that the reverse relationship can also be true, and actually better points to the more legitimate ways by which citizens relate to the law. In drawing this connection between moral and legal reasoning, I first present below an illustration of what such a process would look like.
Figure 8: Legal Reasoning as a Heuristic for Moral Reasoning

In this framework, links (1) and (2) describe the ways that situations are deemed right or wrong on the individual level, whether through comprehensive doctrines or interests framed in public

53 The most systematic look at this relationship can be found in: Sunstein, Cass R. Moral Heuristics and Moral Framing. Minnesota Law Review. Vol. 88, Jun. 2004, pp. 1556-1597.

Hanley 28

reason. The links marked (3) and (4) present the two ways by which the individual can present arguments in legal discourse using either comprehensive doctrines or more public reasons. These links remain uncontroversial, as they indicate the ways that an individual can approach legal and moral reasoning. Link (5) starts to enter contentious territory, as it entertains the question of whether or not comprehensive doctrines actually influence the values debated within legal discourse. In the previous section, I argued that the results of this experiment do point to ethics of community as a value taken into account in legal decision-making, often framed in the context of public harm or offensiveness. With this in mind, it would appear that more comprehensive doctrines of what constitutes a public harm have indeed influenced the content of legal deliberation. Link (6) represents the process undertaken in considering competing legal values. As the Miller v. California case indicates, American jurisprudence has placed a primacy on balancing constitutional values that seem to conflict with one another in certain cases. While case law enters the realm of the judiciary, it is not a stretch to conceive deliberation in legislatures as having the same process, albeit more geared towards the public interest. This practice of balancing competing values represents a more nuanced conception of public reason, since, in empirical cases, the values formulated by public reasons do not always win out. In arguing for a legal heuristic, I contend that there are two ways by which legal deliberation feeds back to moral reasoning. In general, these two ways demonstrate how legal discourse on an issue can serve as an anchoring heuristic that individuals use when considering the moral merits of related situations. Link (B) represents the spillovers of compliance and identification with the legal precedent of related issues. In the experiment interviews, many participants in both groups asked for the legal precedent in the Eating the Family Pet case, as

Hanley 29

the moral situation represents one that is not commonly encountered. Some participants chose to cite related laws on industrial animal farming, an exception that commonly overrides state cruelty laws on the national level.54 From this case, we see that compliance with related laws serves as a heuristic for the moral evaluation of related situations. Aside from using legal outcomes, the discussions of these cases throughout the experiment demonstrate that individuals also internalize the process of balancing competing values when making moral decisions. This relationship is represented by link (A). In the context of the experiment, this relationship was most clearly observed once participants in the experiment group had completed a discussion of the case involving public exposure. Following that discussion, participants reframed their justifications as a balancing of the two values ethics of autonomy and ethics of community to the point that the harm probe almost became redundant. Interestingly, this same process was found to be the case in the control group, where the questions did not call for a consideration of the issue in a legal setting. While this tendency could be construed as an anticipatory response on the part of the subjects, it nonetheless shows that the participants placed an importance on the balancing of competing values as a means to justify moral judgments. In practice, this balancing has occurred most often by empowering the states to answer issues that have remained unresolved at the national level. Indeed, the four cases featured in this experiment were legal topics that had been delegated to state legislatures, indicating that this balancing of values has in fact occurred with each of these issues on the state level. Federalism presents the opportunity for even narrower political communities to address issues in a way that

54 Animal Welfare Act Quick Reference Guide. United States Department of Agriculture. Updated 27 Mar. 2012. Accessed 6 May 2012. <http://www.nal.usda.gov/awic/pubs/Legislat/awabrief.shtml>.

Hanley 30

better conforms to their conception of public harm, while keeping the general constitutional liberties in mind.55 Taken together, links (A) and (B) give evidence to the ways which citizens attribute legitimacy to legal processes.56 In complying with laws and identifying their authority in addressing related issues, we see the specific ways in which the rule of law commands a sense of respect among citizens. More importantly, we see that the internalization of the balancing act between competing values in moral judgment that took place lends empirical support to the argument that citizens legitimate legal processes in internalizing them as a heuristic for moral judgment.

Conclusion From an empirical analysis on the disgust response in a political setting, we have arrived at a unique perspective on the relationship between moral and legal reasoning. This feedback relationship posits that the standard of public deliberation does indeed demand that we reframe moral intuitions in terms of more reasonable concerns with a public interest. This legal deliberation, in turn, serves as a heuristic for a consideration of related issues in a moral setting. Although the values cited in a legal setting may not be reciprocally justifiable, we nonetheless legitimize the legal process as that which seek to balance competing values in the public interest, a process that have internalized as acceptable and useful for moral deliberation.

55 Horowitz, Donald. The Many Uses of Federalism. Drake Law Review. Vol. 55, Jul. 2007, pp. 953-1057. Pp. 958-961. 56 In a way, these two ways are a nuanced distinction between the three ways that law shapes or changes citizen behavior compliance, identification, and internalization. For a formal definition of these three terms, see: Kelman, Herbert. Compliance, Identification, and Internalization: Three Processes of Attitude Change. Journal of Conflict Resolution. Vol. 2(1), Mar. 1958, pp. 51-60. Pp. 52-54. In relation to these terms, citizens comply with the legal decision and identify it in relation to similar situations, yet they internalize the balance of values taken into account when reaching the decision.

Hanley 31

While the overall limited external validity of these results limits the extent to which these conclusions are generalizable, I argue that such a hindrance only presents further opportunities for research. How consistent would these results be with a more diversified set of experimental groups? Would less politically informed cohorts share a similar view of legal legitimacy? While these questions have yet to be explored, some political psychologists have suggested that political aschematics tend to look to political elites in forming opinions and weighing values in law and policy,57 a fact that would further validate this feedback relationship between legal and moral reasoning. Another interesting question to consider involves the legitimacy of legal processes in democratic legislatures outside the United States. If we track the practice of balancing values in law with the jurisprudences of various constitutional courts, would we see a relationship between the values cited by the courts and the moral reasoning of that countrys citizens? This question becomes more interesting given the wide range of jurisprudence practices among constitutional democracies.58 Is the continued complicity with the rule of law in these countries grounded in this same feedback relationship between moral and legal processes?

57 See: McClosky, Herbert and John Zaller. Social Learning and the Acquisition of Political Norms. The American Ethos. Cambridge: Harvard University Press, 1985. Here, McClosky argues that political disagreement leads aschematics to conform to the ideologies and values of political elites. 58 Germany, for example, has had a history of bolstering dignity as a fundamental principle in law, a practice that has tended towards a more liberal jurisprudence. Italy, on the other hand, has often legislated based on public morality, due namely to its close ties with the Catholic Church.

Hanley 32

Appendix A Experimental Scenarios Scenario #1 Public Exposure Judy and her child decided to take a trip to Charleston for the day. Finding the train the most convenient route, they made their way to the city on this form of public transportation. Judy had just begun to read the latest issue of Newsweek when her child interrupted her, pointing to the seat next to them and saying, Mommy, whats she doing? Judy looked to her left and saw another woman sitting across the aisle from her. Her breasts were completely exposed, as she was breastfeeding an infant. As the infant hiccupped, Judy and her child noticed breast milk running down both the infants mouth and the womans breast. Judy promptly notified the conductor, who then told the woman to either use the restroom or else he would have to call the police. Scenario #2 Incest Julie and Mark are brother and sister. They are travelling together to Boston one weekend. One night they are staying alone in a cabin near the beach. They decide that it would be interesting and fun if they tried making love. At the very least it would be a new experience for them. Julie was already taking birth control pills, but Mark uses a condom too, just to be safe. They both enjoy making love and try several sex positions, but ultimately they decide not to do it again. Upon returning they tell their friends about the experience, and how it formed a special bond between the two of them. Scenario #3 Eating the Family Pet One afternoon, Chris was playing fetch with his dog Max. During one throw, the ball slipped from Chriss hand, flying at an angle and landing in the middle of the street. Max runs to get the ball, despite Chriss screams not to. A driver passing by the street does not notice the dog until the last minute, and hits Max despite all of his attempts to stop the car. Chris deduces that Max is instantly killed, and runs inside the house to alert his family. They come out, grab Max, and bring him into the house. Later that night, they decide to cook Max and serve him for dinner. They clean the corpse and adequately cook it to ensure that there is no risk of catching any illnesses or diseases. While dinner is served, the neighbors drop by with a gift of wine, see the cooked and bloody corpse, and quickly exit the house to call the police. Scenario #4 Sexual Profanity The Joness were having a particularly special dinner one night. Billy, the eldest son, had just come home for break after his first semester at college, and the extended family also agreed to stop by and ask Billy about his experiences. In the middle of dinner, Sophie, the youngest Jones child, interrupts the conversation with a sudden interjection mommy, what are our neighbors doing? The mother, noticing that Sophie is looking outside the dining room window, follows suit. The neighbor, a homosexual male, is seen having anal intercourse with another man inside his house with the shades open. The two men are seen exchanging saliva and seminal fluids. The mother quickly closes the blinds and promptly leaves the house to demand that her neighbor do the same.

Hanley 33

Appendix B-1: Moral Evaluation Form Case I Public Exposure

Disgust Responses: Visual Verbal

(a) Evaluation: What do you think about this? Is it very wrong, a little wrong, or perfectly OK for the woman to breastfeed in public? Very Wrong Comments: (b) Justification: Can you tell me why? Ethics of autonomy Ethics of community Ethics of divinity Norm Statement Uncodeable Comments: A little wrong Perfectly OK

(c) Harm: Is anyone hurt by what the woman did? Who? How? Judy The child

Yes

No Society Other

_______________________________________________

(d) Bother: Imagine you saw a woman completely exposed, breastfeeding an infant in public. Would it bother you, or would you not care? Bothered Not care

(e) Interference Should the mother be stopped in any way? Comments: ____________________

Yes

No

Hanley 34

Case II Incest
Disgust Responses: Visual Verbal

(a) Evaluation: What do you think about this? Is it very wrong, a little wrong, or perfectly OK for siblings Mark and Julie to have protected intercourse? Very Wrong Comments: (b) Justification: Can you tell me why? Ethics of autonomy Ethics of community Ethics of divinity Norm Statement Uncodeable Comments: A little wrong Perfectly OK

(c) Harm: Is anyone hurt by what they did? Yes Who? How? Siblings The potential child

No Society Other

_______________________________________________

(d) Bother: Imagine you were one of the friends to which they recounted their sexual experiences. Would it bother you, or would you not care? Bothered Not care

(e) Interference Should they have been stopped in any way? Comments: ____________________

Yes

No

Hanley 35

Case III Eating Family Pet

Disgust Responses: Visual Verbal

(a) Evaluation: What do you think about this? Is it very wrong, a little wrong, or perfectly OK for the family to eat the dog? Very Wrong Comments: (b) Justification: Can you tell me why? Ethics of autonomy Ethics of community Ethics of divinity Norm Statement Uncodeable Comments: A little wrong Perfectly OK

(c) Harm: Is anyone hurt by what the family did? Who? How? The family - disease

Yes The dog

No Society Other

_______________________________________________

(d) Bother: Imagine you were the neighbors that walked in on them eating the corpse. Would it bother you, or would you not care? Bothered Not care

(e) Interference Should the family be stopped in any way? Comments:

Yes

No

Hanley 36

Case IV Sexual Profanity

Disgust Responses: Visual Verbal

(a) Evaluation: What do you think about this? Is it very wrong, a little wrong, or perfectly OK for the neighbor to have anal intercourse with the shades open? Very Wrong Comments: (b) Justification: Can you tell me why? Ethics of autonomy Ethics of community Ethics of divinity Norm Statement Uncodeable Comments: A little wrong Perfectly OK

(c) Harm: Is anyone hurt by what the neighbor did? Who? How? Onlookers

Yes

No Society Other

The child

_______________________________________________

(d) Bother: Imagine you had been an incidental onlooker to this display of anal intercourse. Would it bother you, or would you not care? Bothered Not care

(e) Interference Should they be stopped in any way? Comments: _________________________

Yes

No

Hanley 37

Appendix B-2: Legal Evaluation Form Case I Public Exposure

Disgust Responses: Visual Verbal

(a) Evaluation: You are currently in Congress, and are in the position to pass a bill that would prohibit public breastfeeding on the national level. Would you support or rejection this prohibition? Support Prohibition Comments: (b) Justification: In responding to the bill, you now have the floor to provide reasons for or against the bill. What would you say? Ethics of autonomy Ethics of community Ethics of divinity Norm Statement Uncodeable Comments: Reject Prohibition

(c) Harm: Another representative takes the floor to address the bill. His speech emphasizes that public breastfeeding does not harm any parties involved, and that the freedom to perform this act would be beneficial to some parties. How would you respond? Does it harm anyone? Who? How? Judy Yes The child No Society Other

_______________________________________________

(d) Bother: Imagine that you actually saw someone breastfeeding in public. Would you inform the authorities? Yes No (e) Interference Congress now has the opportunity to vote on the bill. Would you vote to prohibit public breastfeeding? Yes No Comments: ________________________________

Hanley 38

Case II Incest
Disgust Responses: Visual Verbal

(a) Evaluation: You are currently in Congress, and are in the position to pass a bill that would prohibit all forms of incest up to first-cousin, even if protected, on the national level. Would you support or rejection this prohibition? Support Prohibition Comments: (b) Justification: In responding to the bill, you now have the floor to provide reasons for or against the bill. What would you say? Ethics of autonomy Ethics of community Ethics of divinity Norm Statement Uncodeable Comments: Reject Prohibition

(c) Harm: Another representative takes the floor to address the bill. His speech emphasizes that incest, when protected, does not harm any consenting parties involved, and that the freedom to perform this act would be beneficial to some parties. How would you respond? Does it harm anyone? Who? How? Siblings Yes The potential child No Society Other

_______________________________________________

(d) Bother: Imagine that you actually heard about a case of incest occurring. Would you inform the authorities? Yes No (e) Interference Congress now has the opportunity to vote on the bill. Would you vote to prohibit all the stated forms of incest? Yes No Comments: _________________________________

Hanley 39

Case III Eating Family Pet

Disgust Responses: Visual Verbal

(a) Evaluation: You are currently in Congress, and are in the position to pass a bill that would prohibit the desecration and consumption of corpses on the national level. Would you support or rejection this prohibition? Support Prohibition Comments: (b) Justification: In responding to the bill, you now have the floor to provide reasons for or against the bill. What would you say? Ethics of autonomy Ethics of community Ethics of divinity Norm Statement Uncodeable Comments: Reject Prohibition

(c) Harm: Another representative takes the floor to address the bill. His speech emphasizes that consuming the flesh, when done after proper cooking, does not harm any parties involved, and that the freedom to perform this act would be beneficial to some parties. How would you respond? Does it harm anyone? Who? How? Yes No The dog Society Other

The family - disease

_______________________________________________

(d) Bother: Imagine that you were the neighbor that walked in on this dinner. Would you inform the authorities? Yes No (e) Interference Congress now has the opportunity to vote on the bill. Would you vote to prohibit the desecration and consumption of corpses? Yes No Comments: _____________________________________

Hanley 40

Case IV Sexual Profanity

Disgust Responses: Visual Verbal

(a) Evaluation: You are currently in Congress, and are in the position to pass a bill that would prohibit publicly explicit sexual acts on the national level. Would you support or rejection this prohibition? Support Prohibition Comments: (b) Justification: In responding to the bill, you now have the floor to provide reasons for or against the bill. What would you say? Ethics of autonomy Ethics of community Ethics of divinity Norm Statement Uncodeable Comments: Reject Prohibition

(c) Harm: Another representative takes the floor to address the bill. His speech emphasizes that sexual acts, when done inside ones home shades open or not, does not harm any parties involved, and that the freedom to perform this act would be beneficial to some parties. How would you respond? Does it harm anyone? Who? How? Onlookers Yes No The child Society Other

_______________________________________________

(d) Bother: Imagine you had been an incidental onlooker to this display of anal intercourse. Would you inform the authorities? Yes No (e) Interference Congress now has the opportunity to vote on the bill. Would you vote to prohibit publically explicit sexual acts? Yes No Comments: ________________________________________

Hanley 41

Appendix C Participant Demographics

Gender Distribution

Socioeconomic Distribution

Female 31 52%

Male 29 48%

9, 15%

11, 18%

$40,000- $74,999 $75,000- $99,999

25, 42%

15, 25%

$100,000- $150,000 Over $150,000

Racial Distribution

8, 13% 3, 5% 5, 9% 12, 20%

Arab Asian/Pacisic Islander Black

2, 3%

27, 45%

3, 5% Caucasian/White
Hispanic Latino Multiracial

Hanley 42

Political Ideology Distribution

3, 5% 3, 5%
Very Liberal

22, 37% 31, 51%

Liberal Moderate Conservative Very Conservative

1, 2%

Religious Affiliation Distribution

7, 12% 2, 3%

7, 11%

Protestant Catholic

27, 45%

13, 22%

Muslim Jewish No Afsiliation

3, 5%

1, 2%

Other Prefer not to say

Hanley 43

Works Consulted Animal Welfare Act Quick Reference Guide. United States Department of Agriculture. Updated 27 Mar. 2012. Accessed 6 May 2012. <http://www.nal.usda.gov/awic/pubs/Legislat/awabrief.shtml>. Congress Debates Biblical Stance on Immigration. CNN News. Accessed 3 Apr. 2012. <http://religion.blogs.cnn.com/2010/07/14/immigration-debate-focuses-on-religionethics>. George, Robert. Legal Enforcement of Morals. Making Men Moral. New York: Oxford Univ. Press, 1995. George, Robert. The Concept of Public Morality. The Clash of Orthodoxies. Wilmington: Intercollegiate Studies Institute, 2002. Haidt, Jonathan. The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment. Psychological Review. Vol. 108(4): 2001, pp. 814-834. Haidt, Jonathan, Silvia Helena Koller, and Maria G. Dias. Affect, Culture, and Morality, or Is It Wrong to Eat Your Dog? Journal of Personality and Social Psychology. Vol. 63(4), 1993, 613-628. Han, Seunghee, Jennifer Lerner, and Richard Zeckhauser. The Disgust-promotes-disposal Effect. Journal of Risk and Uncertainty. Vol. 44, Feb. 2012, 101-113. Horowitz, Donald. The Many Uses of Federalism. Drake Law Review. Vol. 55, Jul. 2007, pp. 953-1057. Pp. 958-961. Kelman, Herbert. Compliance, Identification, and Internalization: Three Processes of Attitude Change. Journal of Conflict Resolution. Vol. 2(1), Mar. 1958, pp. 51-60.

Hanley 44

McClosky, Herbert and John Zaller. Social Learning and the Acquisition of Political Norms. The American Ethos. Cambridge: Harvard University Press, 1985. Miller v. California. 413 U.S. 15. Supreme Court of the United States. 21 Jun. 1973. Nussbaum, Martha. Hiding From Humanity: Disgust, Shame, and the Law. Princeton: Princeton Univ. Press, 2004. Rawls, John. Political Liberalism. New York: Columbia Univ. Press, 2005. Rawls, John. The Idea of Public Reason Revisited. The University of Chicago Law Review. Vol. 64(3), Summer 1997, pp.765-807. Sears, David O. Symbolic Politics: A Socio-Psychological Theory Explorations in Political Psychology, 1993, chap. 5, pp. 113-149. Shields, Jon A. The Democratic Virtues of the Christian Right. Princeton: Princeton Univ. Press, 2009. Sunstein, Cass R. Moral Heuristics and Moral Framing. Minnesota Law Review. Vol. 88, Jun. 2004, pp. 1556-1597.

This paper represents my own work in accordance with University regulations. Michael K. Hanley 8 May 2012