Experimental Philosophy

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.

"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 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.

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.

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 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.

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:

1) Did the driver knowingly bring about the thief’s death? Yes No

2) Did the driver intentionally bring about the thief’s death? Yes No

3) How much blame does the driver deserve for the death of the thief (On a scale from 0 to 6—0
being no blame and 6 being a lot of blame)?

The results were as follows:

Case 1:
Q1) Y 46
N 16

Q2) Y 22
N 40

Q3) Y 5.9
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 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?

Foresight and Intentional Action

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 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 intentionally bringing about a side effect. Indeed, on some views there is no such thing as bringing about a side effect intentionally--after all, if you either intended to bring y about or 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 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 concept of intentional action that courts, lawyers, and judges use ought to settle with the concept as it is ordinarily used, don't psychologists and philosophers need to do more 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 intuitions?