https://philosophycommons.typepad.com/xphi/philosophy-of-law/
Although often provocative, they tend to come across as
Philosophy of law
04/28/2016
Experimental Philosophy and the Law
Some of you may be interested in "Belief States in Criminal Law," a forthcoming article I
recently posted on SSRN. It's an updated version of the paper I presented at last year's X-Phi
conference at University of Buffalo. Many thanks to those I met there and elsewhere for your
insightful comments on this paper and related projects. More comments are always welcome!
Here is the abstract:
Belief-state ascription—determining what someone “knew,” “believed,” was “aware of,” etc.—is
central to many areas of law. In criminal law, the distinction between knowledge and
recklessness, and the use of broad jury instructions concerning other belief states,
presupposes a common and stable understanding of what those belief-state terms mean. But
a wealth of empirical work at the intersection of philosophy and psychology—falling under the
banner of “Experimental Epistemology”—reveals how laypeople’s understandings of mens rea
concepts differ systematically from what scholars, courts, and perhaps legislators, have
assumed.
As implemented, mens rea concepts are much more context-dependent and normatively
evaluative than the conventional wisdom suggests, even assuming that jurors are following
jury instructions to the letter. As a result, there is less difference between knowledge and
recklessness than is typically assumed; jurors consistently “over”-ascribe knowledge to
criminal defendants; and concepts like “belief,” “awareness,” and “conscious disregard” mean
different things in different contexts, resulting in mens rea findings systematically responsive to
aspects of the case traditionally considered irrelevant to the meaning of those terms.
This Article provides the first systematic account of the factors driving jurors’ ascriptions of the
specific belief states criminal law invokes. After surveying mens rea jury instructions,
introducing the Experimental Epistemology literature to the legal literature on mens rea, and
examining the implications of that literature for criminal law, this Article considers ways to
begin bridging the surprisingly large gap between mens rea theory and practice.
Posted by James A. Macleod on 04/28/2016 at 09:07 AM in Epistemology, Philosophy of law,
Recent Work in X-Phi | Permalink | Comments (0)
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04/24/2016
Chomsky and Moral Philosophy
Some experimental philosophers might be interested in "Chomsky and Moral Philosophy," a
new paper I recently posted on SSRN. It will appear in the second edition of The Cambridge
Companion to Chomsky (J. McGilvray, ed), which is due out later this year. Here is the
abstract:
Every great philosopher has important things to say about moral philosophy. Chomsky is no
exception. Chomsky’s remarks on this topic, however, are not systematic. Instead, they consist
1
mainly of brief and occasional asides.
digressions from his central focus on linguistics and related disciplines, such as epistemology,
philosophy of language, and philosophy of mind. Perhaps as a result, moral philosophers have
paid relatively little attention to Chomsky over the past sixty years.
This neglect is unfortunate. Chomsky’s insights into the nature and origin of human morality
are fundamental and penetrating. They address deep philosophical problems that have shaped
the aims of moral philosophy for centuries. They also reinforce many of the lessons Chomsky
has taught about the nature and origins of human language. Elaborating upon these themes,
this chapter begins by recounting two of Chomsky’s most extensive discussions of moral
philosophy, each of which draws attention to the fact that, like linguistic knowledge, moral
knowledge is an example of Plato’s problem: a complex mental competence characterized by
a profound poverty of the stimulus. The chapter then places these remarks in a broader
context by providing a brief discussion of mentalist, modular, and nativist theories of moral
cognition from Plato to the present. Finally, the chapter responds to one prominent criticism of
Chomsky’s naturalistic approach to moral philosophy, that of the late philosopher, Bernard
Williams. I argue that Williams’ “Wittgensteinian” skepticism about moral rules is no more
convincing than a similar skepticism about grammatical rules in the context of linguistic theory.
Posted by John Mikhail on 04/24/2016 at 12:03 PM in Action theory, Epistemology, Ethics,
Intuitions, Moral Psychology, Philosophy of Language, Philosophy of law, Philosophy of Mind |
Permalink | Comments (0)
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10/10/2013
Elements of Moral Cognition now out in paperback
I'm pleased to announce that my book, Elements of Moral Cognition: Rawls' Linguistic Analogy
and the Cognitive Science of Moral and Legal Judgment, is now available in paperback. The
price tag is, thankfully, more affordable than the $90.00 that Cambridge initially charged for the
hardcover edition, to which Mark Phelan understandably drew attention in his thoughtful and
perceptive review of the book for Notre Dame Philosophical Reviews. For those who might be
interested in obtaining an examination copy, instructions from CUP can be found here.
During the next few months, I hope to post some reflections on Mark's review and other critical
reactions to the book (see, e.g., here, here, and here), and, more generally, on current trends
in moral psychology, which in recent years has become one of the most dynamic and
influential areas of research in experimental philosophy and the cognitive and brain sciences,
broadly construed. I also hope to discuss some of the implications of this new research for
moral philosophy, legal theory, and public policy.
A brief description of the book and three reviews are given below:
Abstract
Is the science of moral cognition usefully modeled on aspects of Universal Grammar? Are
human beings born with an innate "moral grammar" that causes them to analyze human action
in terms of its moral structure, with just as little awareness as they analyze human speech in
terms of its grammatical structure? Questions like these have been at the forefront of moral
psychology ever since John Mikhail revived them in his influential work on the linguistic
analogy and its implications for jurisprudence and moral theory. In this seminal book, Mikhail
offers a careful and sustained analysis of the moral grammar hypothesis, showing how some
of John Rawls' original ideas about the linguistic analogy, together with famous thought
experiments like the trolley problem, can be used to improve our understanding of moral and
legal judgment. The book will be of interest to philosophers, cognitive scientists, legal scholars,
and other researchers in the interdisciplinary field of moral psychology.
Reviews
"Judicious, carefully executed, and deeply informed, this valuable study builds upon the early
work of John Rawls, including his now-classic Theory of Justice, identifying its core principles,
persuasively defending them against critics, deepening them conceptually and developing rich
empirical foundations. It thereby provides the outlines of a naturalistic theory of moral judgment
and moral cognition, which may well be a common human possession. One conclusion with
broad consequences is that moral cognition crucially relies on the generation of complex
mental representations of actions and their components. Mikhail's enterprise resurrects
fundamental themes of traditional moral philosophy and Enlightenment rationalism, while
showing how they can be cast as empirical science with far-reaching implications for political,
social, and legal theory. It is a most impressive contribution."
--Noam Chomsky
"John Mikhail's Elements of Moral Cognition: Rawls Linguistic Analogy And The Cognitive
Science of Moral Judgment carefully and convincingly explains John Rawls' remarks in his
Theory of Justice about a possible analogy between linguistics and moral theory, showing that
most commentators have mischaracterized these remarks and have therefore misunderstood
important aspects of Rawls' early writings. (This is the best account I have read of Rawls.) In
addition Mikhail takes the linguistic analogy more seriously than other researchers and
develops the beginnings of a kind of moral grammar that is somewhat analogous to the
grammar of a language. The grammar he envisions has rules characterizing more or less
complex actions, rules that derive partly from Alvin Goldman's Theory of Action and uses
concepts taken from common law. He also speculates on the implications of the possibility that
a moral grammar of this sort might account for aspects of ordinary moral judgments,
comparing morality with language. I believe that Mikhail's current work in this area as reported
in his book is the most important contemporary development in moral theory."
--Gilbert Harman, Stuart Professor of Philosophy, Princeton University
"Finally, a book that compares our current knowledge of human morality against the idea of an
inborn rule-based system, not unlike universal grammar. With great erudition, John Mikhail
carefully discusses all of the steps needed to understand this linguistic parallel, adding a new
perspective to the ongoing debate about an evolved moral sense."
--Frans de Waal, author of "The Age of Empathy" (Harmony, 2009)
Posted by John Mikhail on 10/10/2013 at 11:37 AM in Books, Ethics, Intuitions, Philosophy of
law | Permalink | Comments (1)
Reblog (0)
2
07/27/2010
A Judge's Guide to Neuroscience
The MacArthur Law and Neuroscience Project (along with the SAGE Center at UCSB) recently
published A Judge's Guide to Neuroscience: A Concise Introduction. The useful manual
contains articles by Marcus Raichle, Michael Gazzaniga, Adina Roskies, Read Montague,
Scott Grafton, and others. And while it is aimed at judges, I think it might be useful for
philosophers interested in these interdisciplinary issues as well.
Posted by Thomas Nadelhoffer on 07/27/2010 at 11:18 PM in Philosophy of law | Permalink |
Comments (0)
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07/21/2010
Intentional Side-Effects and X-Phi Methods: new paper
Robin Scaife and I have a new paper on intentional side-effects forthcoming in Journal of
Moral Philosophy. You can download a draft here.
The paper argues against the consensus view that experiments have shown a normative
dimension to the folk concept of intentional action (or at least to its application).
Our preferred hypothesis is that the outcome of an action is classified as intentional only if the
agent is taken to have assigned it some relative importance when deciding what to do.
We argue that the existing experiments support this hypothesis and we present data from two
experiments of our own that we claim can only be explained by our hypothesis.
Our hypothesis is broader than Machery’s cost–benefit analysis account, since cost in relation
to benefit is only one among various ways in which relative importance can be assigned to a
side-effect. We argue that our hypothesis explains the data Mallon presents against Machery
as well as Machery’s data (and Knobe’s data, Nadelhoffer’s data, our data, and more).
Over the course of the paper, we develop a methodological critique of the preceding literature.
We are particularly concerned with the effect that changing one word in a vignette (e.g.
changing ‘harm’ for ‘help’ in Knobe’s original experiment) has on the way the reader takes
other sentences in the vignette (e.g. ‘I don’t care at all about the environment!’).
We also introduce qualitative analysis of the comments provided by respondents and reflect on
the relation between these and the respondents’ actual practice in applying the concept
‘intentional’. From this, we sketch a picture of the relation between experimental philosophy
and more traditional conceptual analysis.
Enjoy.
Posted by Thomas Nadelhoffer on 07/21/2010 at 07:05 PM in Action theory, Ethics,
Philosophy of law, Social Psychology, Studies & Surveys | Permalink | Comments (0)
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05/26/2010
Churchland and Suhler at On the Human
There is an on-line discussion over at On the Human about Patricia Churchland and
Christopher Suhler's recent work on nonconscious control and agency. Several experimental
philosophers have already joined the conversation, so hopefully some of you will follow suit!
Here is the general introduction and here is the discussion thread.
Posted by Thomas Nadelhoffer on 05/26/2010 at 03:07 PM in Action theory, Ethics,
Philosophy of law, Social Psychology, Weblogs | Permalink | Comments (0)
Reblog (0)
03/02/2009
Experimental Political Philosophy
Jonathan Phillips is presenting his experimental studies of people's intuitions about freedom
over at the Political Philosophy Podcast Symposium.
In an interesting twist, the symposium includes a video that lets you listen to him explain the
studies while following along with a powerpoint presentation (kind of like Justin Sytsma's
amazing presentation on intuitions about consciousness). Readers then have a chance to write
in with questions, objections, etc.
Definitely something worth checking out.
Posted by Thomas Nadelhoffer on 03/02/2009 at 04:48 PM in Philosophy of law | Permalink |
Comments (1)
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10/29/2008
Freedom: an Experimental Analysis
Consider the following case:
Tanya lives in a small, newly created country in Eastern Europe. Perhaps the most
important issue in the region is the treatment of a disenfranchised minority that lives
throughout the country. Tanya truly dislikes the minority and wants to further damage them if
she can. While public opinion concerning the minority varies greatly, the government has taken
the side of the minority. Consequently, a ban has been placed on any action or public speech
that is intended to hurt the disenfranchised minority. In other words, the government has made
laws against hurting the minority, but Tanya wishes she could hurt them.
Now ask yourself: 'To what extent do these laws diminish Tanya's freedom?'
Once you have decided on the answer to this question, consider a very similar case with one
important difference: Tanya wants to help the disenfranchised minority.
3
Tanya lives in a small, newly created country in Eastern Europe. Perhaps the most
important issue in the region is the treatment of a disenfranchised minority that lives
throughout the country. Tanya truly cares about the minority and really wants to help them if
she can. While public opinion concerning the minority varies greatly, the government has sided
against the minority. Consequently, a ban has been placed on any action or public speech that
is intended to help the disenfranchised minority. In other words, the government has made
laws against helping the minority, but Tanya wishes she could help them.
Now ask yourself the same question again: 'To what extent do these laws diminish Tanya's
freedom?'
During an experiment I conducted in which participants were presented with these two cases, I
discovered an very interesting result. Participants thought that Tanya's freedom was much
more diminished in the second case than in the first. In other words, subjects thought that
people's freedom was much more diminished when they were prevented from doing something
morally good than when they were prevented from doing something morally bad. After noticing
this interesting result, I conducted two other studies which further confirmed the interesting
effect found in the first survey.
I would like to know how other people interested in experimental philosophy might explain this
effect. Specifically, what is it about the folk concept of freedom that it elicits this result? Any
and all suggestions are welcome.
I propose one possible explanation and a survey all the experiments in the full paper, here:
Freedom: Morality and Folk Intuitions
Posted by Thomas Nadelhoffer on 10/29/2008 at 08:05 PM in Philosophy of law | Permalink |
Comments (20)
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08/05/2008
Moral Grammar and Intuitive Jurisprudence: Integrating X-Phi with Traditional Philosophy,
Law, and other Disciplines
First, let me congratulate Eddy, Thomas, and the other organizers of the Workshop on
Experimental Philosophy that was held at the outset of this year's meeting of the SPP. It was
a terrific event, and I was delighted to have the opportunity to participate in it.
My talk at the workshop focused on "Intuitions of Negligence"--those intuitive judgments of
reasonableness that jurors are asked to render every day in courtrooms across the country
about cases involving unintentional harm. As I remarked, these judgments are quite
interesting from a cognitive science/experimental philosophy perspective. First, jurors are not
given much guidance on how to decide whether given conduct is negligent. Rather, they are
simply told to consult their own sense of how a reasonably prudent person would have acted
under the circumstances. New York's pattern jury instructions are typical in this regard:
"Negligence is lack of ordinary care. It is a failure to use that degree of care that a reasonably
prudent person would have used under the same circumstances. Negligence may arise from
doing an act that a reasonably prudent person would not have done under the circumstances,
or, on the other hand, from failing to do an act that a reasonably prudent person would have
done under the same circumstances."
There are minor variations across jurisdictions: some states use the phrase "reasonably
careful person" instead of "reasonably prudent person," for example. But the fact remains
that, in virtually all American jurisdictions, juries are not given much guidance on the
negligence issue, beyond being asked to consider what a reasonably prudent (or careful)
person would have done in the same situation.
Second, American juries are generally not required to explain or justify their intuitions of
negligence. Instead, they are simply asked to render a yes-or-no verdict, without
accompanying reasons. (The trial judge or a reviewing court may override this determination,
of course, but the dominant trend in American law is to permit juries wide latitude in making
this decision.) While this practice has been criticized, it arguably reflects a sound appreciation
of certain inherent limitations of human psychology. In many cognitive domains, intuitive
judgments are guided by unconscious principles, but these principles are difficult or impossible
to recover after the fact through ordinary processes of reflection or introspection. As a result,
an individual's post hoc explanations of her judgments are often misleading, unreliable, or
altogether inaccurate. Yet the judgments themselves often appear on reflection to be sound,
and the computations supporting them are often surprisingly complex and sophisticated. The
locus of certitude, therefore, is correctly located in the intuitive judgments themselves, rather
than their accompanying justifications. The ability of ordinary language users to judge whether
a novel expression in their language is acceptable or unacceptable is one obvious illustration
of this phenomenon, but there are many other familiar examples throughout the cognitive
sciences. Brian Scholl offered some nice examples at the workshop, drawn from the study of
visual perception.
Much recent work in moral psychology, to which many readers of this blog have contributed,
suggests that ordinary moral cognition may fall into the same general pattern. The
unconscious computational character of intuitive moral judgment, however, must be shown
and not merely asserted. This is what I have sought to do in a new paper on moral grammar
and intuitive jurisprudence, which is forthcoming in a volume on moral judgment and decision
making in the Psychology of Learning and Motivation series.
The paper, which is a slightly revised and reformatted draft of the version that was recently
posted on Legal Theory Blog, incorporates my remarks at the workshop on how a five-variable
"moral calculus of risk" can be used to predict and explain moral intuitions in a wide variety of
cases involving unintentional harm. Spurred on by some interesting methodological
discussions that appeared recently on this blog, Leiter Reports (see, e.g., Jason Stanley's
posts here and here), and Savage Minds (see here), the paper also attempts to integrate and
serve as a bridge of sorts between experimental philosophy and more traditional philosophy
(Descartes, Hume, Kant, Mill, Brentano, etc.), along with relevant work in linguistics and
cognitive science (Chomsky, Fodor, Rey, Spelke, etc.), jurisprudence (Bentham, Terry,
Salmond, Cardozo, etc.), anthropology (Durkheim, Gluckman, Geertz, etc.), and other
disciplines. The paper is therefore somewhat ambitious, and I would welcome comments,
criticisms, or suggestions from interested readers. In addition, if any graduate students, post-
4
doc's, or others would be interested in collaborating to gather data on the 14 new trolley
problems in Table 7, you should feel free to contact me at mikhail@law.georgetown.edu.
Thanks,
John
Posted by Thomas Nadelhoffer on 08/05/2008 at 04:57 PM in Action theory, Ethics,
Philosophy of law, Social Psychology | Permalink | Comments (5)
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02/07/2008
Law Student Seeks Collaborators
Esfand Nafisi recently wrote to me with the following message:
Hi. My name is Esfand Nafisi. I am a 2nd year law student at Northwestern University with a
B.S. in psychology. Since watching Professor Stich's series on moral theory and cognition, I
have developed a great interest in experimental philosophy, especially as it relates to law.
I plan on spending the bulk of the next year and a half focusing on the role experimental
philosophy might play in resolving difficult legal questions concerning things like culpability,
intent, etc. Before I begin in earnest, I thought it might be useful to see if there are any
experimental philosophers out there who have any thoughts on the topic they'd like to share.
I'm looking for ideas, collaborators, instruction, whatever.
I think this project has enormous potential, and I would encourage experimental philosophers
either to put up suggestions in the comments section here or to write to Esfand directly at
esfand.nafisi at gmail.com.
Posted by Thomas Nadelhoffer on 02/07/2008 at 07:25 PM in Philosophy of law | Permalink |
Comments (0)
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qwer
Philosophy of law
06/20/2005
Legal Decision Theory: A Cautionary Tale
In a series of well-written and well-researched articles, Gregory Mitchell--the Sheila McDevit
professor of Law at Florida State University--has launched an assualt on the behavioral law
and economics movement (or as he calls it, "legal decision theory"). Legal decision theorists
typcially rely on empirical research from social psychology--especially the research on
heuristics and biases--to undermine some of the foundational assumptions of traditional law
and economics (especially the rational actor models of human psychology and decision-
making so prevalent among economists). According to Mitchel, legal decision theorists all-too-
often make sweeping claims about human rationality (or lack thereof) that often go well beyond
the data that have been collected. On his view, much more caution is in order. Conceding that
many of the recent developments in social psychology give us reason for being suspicious of
many of the main tenents of law and economics, Mitchell nevertheless thinks that legal
decision theorists overstate their case--a trend that he believes may unfortunately threaten to
undermine the long-term credibility of empirical research among legal theorists. Mitchell points
out a number of problems with the research that is relied on by legal decision theorists--many
of which are relevant to the work being done in experimental philosophy. For example, small
sample sizes, the near exclusive reliance on between-subject studies, using the rational or
right choice as the null-hypothesis, the overstating of the significance of "statistical
significance," the dearth of meta-analyses, making inferences about individual differences
based on group differences, etc. Nearly all of the worries that Mitchell expresses about legal
decision theory are worries that apply equally to the kinds of studies that we experimental
philosophers have relied on so far. As such, I think we would all do well to pay attention to
Mitchell's important work in this area.
Posted by Thomas Nadelhoffer on 06/20/2005 at 02:55 PM in Metaphilosophy, Philosophy of
law, Social Psychology | Permalink | Comments (4)
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03/07/2005
"As If" Theories...
In a number of areas of philosophy one might be tempted to put forward what I am going to call
an "as if" theory in an effort to respond to skeptical arguments. An “as if” theory has the
following form:
Even if we have good evidence and/or arguments to the effect that humans lack some property
or capacity x, it is nevertheless in our interest to continue believing and/or acting as if x is a
property or capacity that we do not lack.
Take, for example, the suggestion that even if humans happen not to be "metaphysically" free-
-we may be better off living under the general illusion that we are. Both David Velleman's
"epistemic freedom"(2001) and Saul Smilansky's "illusionism" (2000) come to mind. It is easy
enough to imagine similar stories being told in other areas as well. In the wake of John Doris'
attack on robust character traits via what he calls situationalism (2002), for instance, it would
be easy enough for a virtue theorist with consequentialist tendencies to argue that we should
continue acting as if our character traits were more robust than the empirical data suggest they
actually are. Consider another possible “as if” theory--even if it turns out that harsh penalties
do not deter violent crime (indeed, even if it turns out that harsher penalties make matters
worse!), we are nevertheless better off as a society pretending that harsher penalties do in fact
reduce the amount of violent crime.
“As if” theorists have an easy was of shielding themselves from the impact of skeptical
arguments. Indeed, they can essentially grant the skeptical premises while at the same time
arguing that we can avoid the potentially negative social implications of accepting these
skeptical premises by simply pretending that these skeptical premises are false. Hence, even if
humans are descriptively unfree or even if events are entirely determined (or entirely random
for that matter) or even if many (if not most) of the springs of action are beyond (or below or
above) the folds of consciousness or even if our belief in moral objectivity is false or even if
there is no God (or gods), it is still to our advantage to maintain certain illusions about the
5
contrary being the case. In this respect, “as if” theories allow us to respond to the “real” threat
of skeptical concerns along roughly Humean lines—i.e., we accept the premises and
conclusions of skeptical arguments at face value while in our studies. Having done so, we
nevertheless eventually find ourselves once again playing backgammon with our friends and
engaging in other “mundane” affairs—living as if all of those skeptical arguments were a
distant bad dream. On this view, we may naturally have a preference for certain socially
adaptive fictions and fantasies. Hence, another benefit of “as if” theories is that they can be
coupled with evolutionary explanations for why humans prefer the illusions that we do. And
they also receive some empirical support from the research into the positive societal upshots
of self-aggrandizement and other forms of cognitive biases. It turns out that people are
generally better off--socially speaking--if they are somewhat out of touch with the truth about
their own physical and mental limitations. If so, this gives us all the more reason to consider
the possibility that even if we lack some property or capacity x, perhaps we really would better
off pretending that we nevertheless have x after all.
The problems with self-deception writ large notwithstanding, does anyone think that the “as if”
argumentative strategy is an effective one? I haven't really thought it through myself--I am
really just curious to see what others think--either about some of the examples I have
discussed or others that I have overlooked.
Posted by Thomas Nadelhoffer on 03/07/2005 at 01:08 PM in Action theory, Epistemology,
Ethics, Free will, Metaphilosophy, Philosophy of law | Permalink | Comments (17)
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03/03/2005
Philosophy and Public Policy
I realize this post is not really something directly relevant to experimental philosophy--but given
the recent Supreme Court ruling concerning the execution of juveniles, I figure it is topical
enough to merit attention. Plus, I am presently too busy with dissertation writing to post
anything more philosophically substantive in nature!
Studies show that a majority of Americans believe that harsh legal sanctions--e.g., the death
penalty, manditory-minimum sentences, three strikes and you're out laws, etc--deter crime.
Studies also show that these beliefs may very well be false. Assuming, for the sake of
argument, that harsh penalties do not reduce crime, why should we be beholden to the
intuitions of average Americans? Of course, even if we agree that we should not be beholden,
what other choice do we have? Legislators are supposed to cater to our interests--which are in
turn determined to a large extent by our beliefs. As a result, no legislator who wanted to be
either elected or reelected would suggest that we should be "softer on crime"--even though it
may turn out that "being softer on crime" would ultimately reduce crime. For instance, if we
spent more money on preventative measures such as improved primary and secondary
education and better funded community outreach programs as well as on better rehabilitative
programs such as drug treatment, vocational training, and anger management, we might see a
reduction in violent crime. Yet, these kinds of programs are typically unpopular with the
"average Joe"--who thinks these are just liberal attempts to coddle criminals. Hence, there is
virtually no chance that the only kinds of programs that might actually reduce the number of
violent crimes in this country will be adopted--while obscene amounts of money continue to be
spent on constructing prisons (indeed, some states spend nearly as much on their "criminal
justice systems" as on their educational systems!). How is this pernicious cycle to be broken?
More specifically, isn't this an area where philosophers--along with criminologists,
sociologists,and psychologists--ought to be doing more byway of educating the public? Peter
Singer once famously suggested that philosophers were finally "back on the job"--i.e., that
philosophers are finally starting to take a more active role in public policy issues. Should this
be part of our job qua philosophers? If so, what is the best way of living up to our civil duties
and obligations? If not, whose job is it? More importantly, to the extent that we do not join the
public fray concerning issues that we examine in the comfort of our studies, why should
the"average Joe" care much about what we have to say?
I suppose this post is really about my struggle to figure out how to make philosophy relevant to
more "pedestrian" concerns--something many (if not most) philosophers frequently fail to do. In
some areas of philosophy--e.g., contemporary analytic metaphysics, epistemology, or the
philosophy of language--the reasons for this are quite clear. But in other areas--e.g., social
political theory, legal theory, and ethics--it seems less excusable. Indeed, it is telling that one
area of philosophy that is often treated with derision among contemporary analytic
philosophers is "applied ethics"--an area that is purportedly less rigorous or scholarly.
Posted by Thomas Nadelhoffer on 03/03/2005 at 01:42 PM in Philosophy of law | Permalink |
Comments (5)
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01/04/2005
Folk intuitions and the Criminal Law
During the break I finally had a chance to read a few books that I had been excited to read but
that for some time now had been set aside for more pressing things. One of these books is
Paul Robinson and John Darley's "Justice, Liability, and Blame: Community Views and the
Criminal Law"( 1995)--a highly recommended read for any of you who, like myself until
recently, have yet to do so. One of the issues that they raise is particularly fascinating: What
is the proper relationship between folk intuitions--or, as they say, community views--and the
criminal law. More specifically, should a system of criminal law reflect the views of the
community concerning condemnation, punishment, deserved liability, desert, justice,
proportionality, etc.? If so, to what degree? If not, why not? Robinson and Darley discuss the
results of some fascinating empirical studies they ran that probed folk intuitions concerning
issues as diverse as criminal attempt, self-defense, voluntary intoxication, insanity, felony
murder, and sexual offense. Their data suggest that there is a tension between the legal code
in America and folk intuitions concerning criminal culpability and the proportionality of
punishment. The existence of this sort of tension should force us to evaluate the proper
relationship between a legal code and public opinion. Rather than attempt to address such a
broad, yet important, question, I will focus instead on the pending Surpreme Court decision in
the Acuna death penalty case--(out of where else--Texas!)--involving the Constitutionality of
executing someone who committed the crime before the age 18. According to the landmark
Furman v. Georgia (1972), a punishment is cruel and unusual under the 8th Amendment if it is
either: a) severe to the point of degrading either the criminal or society, b) arbitrarily inflicted,
c) unacceptable to contemporary society, or d) excessive or disproportional. For present
purposes, (c) is the most salient. If it turned out that opinion polls showed that a majority of
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American citizens living in states that have capital punishment are opposed to executing
juvenile offenders, is that a good reason--in and of itself--for judging that these executions are
unconstitutional? Should a legal code be subject to the waxing and waning of the beliefs of
"the people" in this way? What is going to count as a majority in these sorts of situations?
Does world opinion matter and should it? By asking these sorts of questions, we are forced to
examine the proper relationship between folk intuitions, the criminal law, and public policy--
thereby cutting across issues in moral, political, and legal philosophy. During the next few
weeks I will be running some studies in an effort to get at folk intuitions concerning the legal
notion of transferred intent--a notion that I think conflicts with our ordinary notions of intent and
intentional action. In the meantime, I wanted to probe each of your intuitions concerning some
of the issues that Robinson and Darley raise.
Posted by Thomas Nadelhoffer on 01/04/2005 at 07:01 PM in Ethics, Philosophy of law, Social
Psychology | Permalink | Comments (1)
Reblog (0)
07/23/2004
D.P.P. v. Smith--A New Study
I just got back into town and figured I should post something. So, here it is. Recently I ran
another preliminary study (part of a much larger study to come!). The cases are based on a
real court case--D.P.P. v. Smith (1961). In this landmark case, jurors in England had to
determine the guilt of a man named Smith who had driven a car containing stolen goods in a
zigzag course in order to shake off a policeman who had been clinging to the side of the car.
When the policeman was finally shaken off, he rolled into oncoming traffic and sustained fatal
injuries (D.P.P v. Smith [1961] A.C. 290). I wanted to see whether moral considerations affect
people's judgments concerning a) whether Smith knowingly brought about the officer's death,
and b) whether Smith intentionally brought about the officer's death. So, I developed two
cases--one involving a thief and an officer and another involving a driver and a car-jacker.
Subjects were 126 undergraduates--each of whom received one of the following two vignettes:
Case 1:
Imagine that a thief is driving a car full of recently stolen goods. While he is waiting at a red
light, a police officer comes up to the window of the car while brandishing a gun. When he
sees the officer, the thief speeds off through the intersection. Amazingly, the officer manages
to hold on to the side of the car as it speeds off. The thief swerves in a zigzag fashion in the
hopes of escaping—knowing full well that doing so places the officer in grave danger. But the
thief doesn’t care; he just wants to get away. Unfortunately for the officer, the thief’s attempt to
shake him off is successful. As a result, the officer rolls into oncoming traffic and sustains fatal
injuries. He dies minutes later.
Questions:
1) Did the thief knowingly bring about the officer’s death? Yes No
2) Did the thief intentionally bring about the officer’s death? Yes No
3) How much blame does the thief deserve for the death of the officer (On a scale from 0 to
6—0
being no blame and 6 being a lot of blame)?
Case 2:
Imagine that a man is waiting in his car at a red light. Suddenly, a car thief approaches his
window while brandishing a gun. When he sees the thief, the driver panics and speeds off
through the intersection. Amazingly, the thief manages to hold on to the side of the car as it
speeds off. The driver swerves in a zigzag fashion in the hopes of escaping—knowing full well
that doing so places the thief in grave danger. But the driver doesn’t care; he just wants to get
away. Unfortunately for the thief, the driver’s attempt to shake him off is successful. As a
result, the thief rolls into oncoming traffic and sustains fatal injuries. He dies minutes later.
Questions:
expansively on ascriptions of knowledge or forsight as well. Indeed, it is this latter possibility
that I will explore in greater depth in the study I will be running in a few weeks. For now, I want
to pose the following question: If moral considerations have a predictable biasing effect on folk
ascriptions of intentional action (and the data suggest that they do), does this create a problem
for jury biasing in cases where jurors are asked to rely on their ascriptions of intentional action
in determining a defendant's guilt (e.g. in the Smith case)? If so, what is the proper remedy? If
not, why not?
Posted by Thomas Nadelhoffer on 07/23/2004 at 04:44 PM in Action theory, Ethics,
Philosophy of law | Permalink | Comments (13)
Reblog (0)
06/24/2004
Foresight and Intentional Action

1) Did the driver knowingly bring about the thief’s death? Yes No There is a long-standing debate in both moral and legal philosophy concerning the relationship
between foresight and intentional action. According to some views, if an agent S performs
2) Did the driver intentionally bring about the thief’s death? Yes No some action x knowing that x will bring about y, then the agent's foresight of y is sufficient for
her bringing about y intentionally. Others have argued that foresight is not sufficient for
3) How much blame does the driver deserve for the death of the thief (On a scale from 0 to 6— intentionally bringing about a side effect. Indeed, on some views there is no such thing as
0 bringing about a side effect intentionally--after all, if you either intended to bring y about or
being no blame and 6 being a lot of blame)? brought about y intentionally, then y was not really a side effect in the first place. In any event,
if we suppose for the sake of argument that probing folk intuitions about side effect cases
The results were as follows: reveals that foresight is commonly sufficient for ascriptions of intentional action (especially in
cases that involve morally bad side effects), how would this affect the debate? Given that the
Case 1: concept of intentional action that courts, lawyers, and judges use ought to settle with the
Q1) Y 46 concept as it is ordinarily used, don't psychologists and philosophers need to do more
N 16 research into the folk concept before we will be in a position to insure that there is a nice fit
between the legal and folk concepts? Or, should jurists (etc.) not feel beholden to ordinary
Q2) Y 22 intuitions?
N 40
Posted by Thomas Nadelhoffer on 06/24/2004 at 03:32 AM in Philosophy of law | Permalink |
Q3) Y 5.9 Comments (2)
N 4.65

Case 2:
Q1) Y 34
N 30

Q2) Y 6
N 58

Q3) Y 4
N 1.89

These results further support the claim that moral considerations--especially negative ones
such as moral badness and/or blame--can have a pronounced effect on folk ascriptions of
intentional action. More interestingly, this data suggest that moral considerations may act
7