Experimental Philosophy

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.

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 mainly of brief and occasional asides. Although often provocative, they tend to come across as 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.

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)

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. 

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.

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.

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.

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.

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

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 mikhail@law.georgetown.edu.

Thanks,
John

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.