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-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 [email protected]

Thanks,
John

Comments

[matt]

John, maybe you account for this in your paper (I've not had a chance to read it) but it seems to me that the reason why we don't require juries, and don't want jurors, to justify their votes isn't so much that their reasoning is inarticulate (though that's probably true) but rather that the result doesn't turn on the reasoning at all- each juror may have a completely different reasoning process for reaching her conclusion but the result is all that matters. In such a case we can't say what the "reasoning" of the jury is, since there's no such thing, and asking the individual jurors to justify their view would just confuse things since the individual reasoning can be quite different from juror to juror. Anyway, this seems to me to be the more basic reason for not having either jurors or juries express their reasoning.

[Anibal]

I believe revealing the underlying principles governing reasoning in any walk of life could allow us to reach to more sound and efficient conclusions and decisions, and in the legal world this is more rquired.

The farsight and wide scope of Professor Mikhail´s program (albeit you can disagree with the details or the asumptions about the computational operations of our moral cognition) the intention is praiseworthy, neverthless!

Im tentatively to suggest to Prof.Mikhail that our intuitive reasoning in folk-jurisprudence follows David Hume´s idea, when he said that we have a procedural mode of reasoning: if more than two people start from the same intuitions they reach the same conclusions.

[John Mikhail]

Thanks for the comments.

Matt: Yes, I think you're quite right: in the jury context, it is certainly possible that each juror could be relying on a completely different reasoning process. If so, that would be another reason for focusing on judgments rather than justifications. I don't address this issue or the broader topic of group judgments in the paper, since I'm concerned there only with explaining a limited set of considered judgments that have been extensively discussed in the literature, but, until now (as far as I'm aware), always from a position of methodological individualism, which I tend to share.

On the other hand, if I understand you correctly, you seem to be making a strong empirical assumption here: equivalent data sets involving intuitive judgments are best explained by postulating different moral grammars. Unless one has good reasons to assume otherwise, why not stick with the simpler, null hypothesis of shared grammars, as I take it one would naturally do in other cognitive domains? A fuller discussion of this issue would probably lead us into the Quine-Chomsky debate on extensionally equivalent grammars, unconscious knowledge, indeterminacy of translation, and other related topics (see, e.g., Quine's paper on linguistic methodology in the Davidson/Harman volume on Semantics of Natural Language, and Chomsky's reply in Reflections on Language). But it's probably best to avoid delving further into those issues here.

Anibal: thank you for your kind remarks. Hume is my favorite philosopher, along with Bentham, and one of the best decisions I made in graduate school was to take a time out from other projects to read all of his major books and essays (i.e., everything but the History) from start to finish, in rough chronological order, beginning with the Treatise, in order to get a feel for his incredible mind. I heartily recommend it to anyone who wants to understand current trends in the cognitive science of moral judgment, and who wants to appreciate the damage that was inflicted on twentieth-century moral psychology by psychological behaviorism.

John

[matt]

Hi John,
Thanks for your reply. I must admit that I'm pretty skeptical of the "moral grammar" idea (in part for the same reasons that I'm skeptical of the universal grammar idea in Chomsky's work- I think it's become so vague and full of epicycles that it's hard to see it doing any serious work in explanation that can't better be answered by other means.) That doesn't mean I accept a Quinean behaviorism, though. More importantly, the point I wanted to make never gets to that level. Rather, for any corporate body that decides things via a vote it seems unlikely that we can determine what "its" reasoning process is just because there need be no single reasoning process, and this is so whether we think there is a universal moral grammar or not. So, even if each jury member thinks "we should punish the guilty" or whatever in a supposed UMG, whether she is convinced _this guy_ is guilty will depend on lots of idiosyncratic facts- she's a racist and the defendant is black, or she always trusts police officers, or she was a victim of crime and so likes to convict, etc. Different factors like this will go into each juror's reasoning and this, it seems to me, is what makes the idea that there is a reason "of the jury" or that we ought to probe beyond the vote problematic. I think quite similar things apply to the intent of the legislature. But this is so all quite besides the question of whether there is a UMG or not, or so it seems to me.

[Anibal]

Thanks for the reply Prof Mikhail.

And regarding the UMG or the linguistic´s analogy, wether ultimately proved to be correct or not is "irrelevant", because what wee need is more bold scientific minds like you that move forward our knowledge combining approaches of disparate fields to gain more perspective, after all, that´s the scientific enterprise.
I´ll keeping reading you!