Legal Theory Blog

Mikail on Moral Grammar & Intuitive Jurisprudence

John Mikhail (Georgetown University - Law Center) has posted Moral Grammar and Intuitive Jurisprudence: A Formal Model of Unconscious Moral and Legal Knowledge (THE PSYCHOLOGY OF LEARNING AND MOTIVATION: MORAL COGNITION AND DECISION MAKING, D. Medin, L. Skitka, C. W. Bauman, D. Bartels, eds., Vol. 50, Academic Press, 2009 ) on SSRN.  Here is the abstract:

Could a computer be programmed to make moral judgments about cases of intentional harm and unreasonable risk that match those judgments people already make intuitively? If the human moral sense is an unconscious computational mechanism of some sort, as many cognitive scientists have suggested, then the answer should be yes. So too if the search for reflective equilibrium is a sound enterprise, since achieving this state of affairs requires demarcating a set of considered judgments, stating them as explanandum sentences, and formulating a set of algorithms from which they can be derived. The same is true for theories that emphasize the role of emotions or heuristics in moral cognition, since they ultimately depend on intuitive appraisals of the stimulus that accomplish essentially the same tasks. Drawing on deontic logic, action theory, moral philosophy, and the common law of tort, particularly Terry's five-variable calculus of risk, I outline a formal model of moral grammar and intuitive jurisprudence along the foregoing lines, which defines the abstract properties of the relevant mapping and demonstrates their descriptive adequacy with respect to a range of common moral intuitions, which experimental studies have suggested may be universal or nearly so. Framing effects, protected values, and implications for the neuroscience of moral intuition are also discussed.

And from the paper:

[W]e have discovered how certain fundamental legal conceptions can be utilized in this endeavor to explain an interesting range of moral intuitions, which prior experimental studies have indicated may be universal, or nearly so. By postulating latent knowledge of these and other basic legal norms, we can accurately predict human moral intuitions in a huge number and variety of actual cases. How this knowledge is acquired and put to use in different cultural, social, and institutional contexts thus emerge as pressing questions for law, philosophy, the social sciences, and the cognitive and brain sciences, broadly construed. As difficult to accept as it may seem, there are grounds for thinking that much of this knowledge may be innate or rooted in universal human instincts, as many cognitive scientists, philosophers, and jurists have often assumed. The argument is not conclusive, however, and more crossdisciplinary research is needed to clarify the relevant conceptual and evidentiary issues.

Mikhail's work is important, and this paper contains both a statement of the general view and the most thorough development yet of the moral grammar hypothesis.  Highly recommended.  Download it while its hot!

Barros on Socrates & Obedience to Law

Ben Barros has a nice post on Prawfs entitled Socrates and Obedience to Law. Here is a taste:

If Socrates’ broad language in the Crito is seen as being hyperbolic in his assertion that disobedience to the law is always unjust, then his language dismissing the relevance of his obligations to his children can also be seen as hyperbolic.  In this reading of the Crito, Socrates’ broad language is addressed to the correct course of conduct for Socrates in his particular circumstances, rather than the issue of just conduct more generally.  Because there was no conflict between Socrates’ obligations to the laws, the god, and his children, it was just for Socrates to obey the law and accept his sentence.  If circumstances had changed, however, the outcome may have been different, and it may have been just for Socrates to disobey the laws.

Venturing onto dangerous ground since my ancient Greek is self-taught and very limited, I wonder if there are two confounding factors in attempting understand Plato's Socrates on legal obligaton:

First, the Greek word translated as "law" is nomos.  The nomoi include what we would think of as positve law, but the Greek word is more encompassing that ours.  The nomoi include what we might call "deeply held and widely shared social (or community) norms."  So the question of conflict between the positive law of Athens and Athenian social norms that establish a duty to family would have been a conflict internal to the nomoi rather than a conflict between law and morality.

Second, the ancient conception of morality was aretaic rather than deontological--that is, Plato's Socrates would have been thinking of this conflict in virtue-theoretic terms.

Cool post by Barros!

Edmundson on Embodiment & the Future of Humanity

William A. Edmundson (Georgia State University) has posted Posterity and Embodiment on SSRN.  Here is the abstract:

Our concern for the future and our conception of human nature have both a philosophical dimension and a public policy dimension. Which would be the better way to spend our next dollar: on life-extension or on artificial intelligence? Manned space-exploration or robotic space-exploration? Answering such public-policy questions involves confronting some deep philosophical mysteries. If you were only concerned for your own survival, would you prefer to have your brain transplanted into another body, or have your brain scanned and its information realized in the hardware of a durable, Turing-testable robot? Would it be better to live one long life without offspring, or a short life leaving generations of descendants? If personal superlongevity and normal fertility would lead to overcrowding, which should we choose? Does considering "existential threats" change how we should answer? This article explores the conceptual and empirical interdependencies of these seemingly disjoint questions.

A deep and deeply interesting paper from Edmundson.  Highly recommended.  Plus it is short and fun to read!

Finaly on Moral Realism

Stephan Finaly has posted Four Faces of Moral Realism on the Internet.  Here is an abstract:

This article explains for a general philosophical audience the central issues and strategies in the contemporary moral realism debate. It critically surveys the contribution of some recent scholarship, representing expressivist and pragmatist nondescriptivism (Mark Timmons, Hilary Putnam), subjectivist and nonsubjectivist naturalism (Michael Smith, Paul Bloomfield, Philippa Foot), nonnaturalism (Russ Shafer-Landau, T. M. Scanlon) and error theory (Richard Joyce). Four different faces of ‘moral realism’ are distinguished: semantic, ontological, metaphysical and normative. The debate is presented as taking shape under dialectical pressure from the demands of (i) capturing the moral appearances; and (ii) reconciling morality with our understanding of the mind and world.

Highly recommended.

Is & Ought and Legal Theory

There is a nice (but introductory) discussion of the Is-Ought distinction at Prawfs, with contributions from Jeff Lipshaw & Rick Hills.  For a slightly deeper discussion, see Legal Theory Lexicon 014: Fact and Value.  And here are four relevant entries from the Stanford Encyclopedia of Philosophy: Rachel Cohon, Hume's Moral Philosphy, Richard Joyce, Moral Anti-Realism, Michael Ridge, Moral Non-Naturalism, & Mark van Roojen, Cognitivism vs. Non-Cognitivism.

Crisp on Scanlon on the Buck Passing Account of Goodness

Roger Crisp's Goodness and Reasons: Accentuating the Negative is available via the Mind website (subscription required). Here is the abstract:

This paper concerns the relation between goodness, or value, and practical reasons, and in particular the so-called ‘buck-passing’ account (BPA) of that relation recently offered by T. M. Scanlon, according to which goodness is not reason-providing but merely the higher-order property of possessing lower-order properties that provide reasons to respond in certain ways. The paper begins by briefly describing BPA and the motivation for it, noting that Scanlon now accepts that the lower-order properties in question may be evaluative. He also insists that the BPA is not biconditional (wisely, since otherwise goodness becomes a ‘Cambridge property’), which leaves him with the task of explaining why goodness arises only in a sub-set of cases in which lower-order properties ground reasons. Having rejected two attempts to do this, based on elucidation of the responses and of the reasons, I suggest that Scanlon may claim that goodness arises in, and only in, cases where the lower-order properties are evaluative and that goodness itself provides us with a way of distinguishing the evaluative from the non-evaluative. In other words, he should retain the negative component of BPA, according to which being good is not itself reason-providing, while surrendering the positive, according to which the property of goodness is merely the higher-order property of having lower-order properties that provide reasons to respond. 

I like this paper & it has a very clear account of Scanlon's buck-passing account of goodness.

Robinson on the Metaphysics of Moral Conflict

Luke Robinson has posted Metaphysics of Moral Conflict on SSRN. Here is the abstract:

One of the more fundamental questions raised by the generalism–particularism debate in ethics is just what a right-making factor (or reason) is. I contrast two possible conceptions of such factors and defend the second. The first understands right-making factors in terms of moral laws, and variants of it are advanced by writers on either side of the generalism–particularism debate. The second understands right-making factors in terms of right-making properties conceived dispositionally—i.e., as powers, capacities, etc. I defend the latter, dispositionalist conception on the basis of its ability to elucidate and explain various features that right-making factors are widely taken to have, including the ability to contribute to the overall moral status of an action without determining it. I also offer dispositionalist conceptions of other morally relevant factors, including defeaters, intensifiers, and disablers. And I deploy these conceptions to elucidate and defend moral holism (or the holism of the right-making relation).

Robinson on Right-Making Factors in the Generalism-Particularism Debate

Luke Robinson has posted Right-Making and Other Morally Relevant Factors on the Internet. Here is an abstract:

One of the more fundamental questions raised by the generalism–particularism debate in ethics is just what a right-making factor (or reason) is. I contrast two possible conceptions of such factors and defend the second. The first understands right-making factors in terms of moral laws, and variants of it are advanced by writers on either side of the generalism–particularism debate. The second understands right-making factors in terms of right-making properties conceived dispositionally—i.e., as powers, capacities, etc. I defend the latter, dispositionalist conception on the basis of its ability to elucidate and explain various features that right-making factors are widely taken to have, including the ability to contribute to the overall moral status of an action without determining it. I also offer dispositionalist conceptions of other morally relevant factors, including defeaters, intensifiers, and disablers. And I deploy these conceptions to elucidate and defend moral holism (or the holism of the right-making relation).

Robinson on Moral Holism

Luke Robinson has posted Moral Holism, the Additive Fallacy, and the “Atomistic” Model on the Internet. Here is the abstract:

The “atomistic” model can model the intuitions that motivate both moral holism—the view that moral valence is variable—and Shelley Kagan’s claim that the additive fallacy is indeed a fallacy. This suggests that we can accept that the additive fallacy is, in fact, a fallacy without rejecting moral atomism; that we can reject both the additive model and the additive assumption without rejecting moral atomism; and that we can resist moral holism by simply allowing that the governing function is non-additive. Against all of this, I argue that the “atomistic” model is best seen as a mathematical model of moral holism; that if it is seen otherwise, its coherence is in doubt; and that even if it can be shown to be a coherent alternative to moral holism, the latter does a considerably better job of capturing the relevant intuitions. Taken together, these arguments show not only that the moral atomist may well be committed to both the additive model and the additive assumption, and hence to denying that the additive fallacy is a fallacy, but also that the “atomistic” model is of no use to moral atomists in resisting moral holism.

Solum on Legal Personhood

Lawrence B. Solum (University of Illinois - College of Law) has posted Legal Personhood for Artificial Intelligences (North Carolina Law Review, Vol. 70, p. 1231) on SSRN. Here is the abstract:

Could an artificial intelligence become a legal person? As of today, this question is only theoretical. No existing computer program currently possesses the sort of capacities that would justify serious judicial inquiry into the question of legal personhood. The question is nonetheless of some interest. Cognitive science begins with the assumption that the nature of human intelligence is computational, and therefore, that the human mind can, in principle, be modelled as a program that runs on a computer. Artificial intelligence (AI) research attempts to develop such models. But even as cognitive science has displaced behavioralism as the dominant paradigm for investigating the human mind, fundamental questions about the very possibility of artificial intelligence continue to be debated. This Essay explores those questions through a series of thought experiments that transform the theoretical question whether artificial intelligence is possible into legal questions such as, "Could an artificial intelligence serve as a trustee?"

What is the relevance of these legal thought experiments for the debate over the possibility of artificial intelligence? A preliminary answer to this question has two parts. First, putting the AI debate in a concrete legal context acts as a pragmatic Occam's razor. By reexamining positions taken in cognitive science or the philosophy of artificial intelligence as legal arguments, we are forced to see them anew in a relentlessly pragmatic context. Philosophical claims that no program running on a digital computer could really be intelligent are put into a context that requires us to take a hard look at just what practical importance the missing reality could have for the way we speak and conduct our affairs. In other words, the legal context provides a way to ask for the "cash value" of the arguments. The hypothesis developed in this Essay is that only some of the claims made in the debate over the possibility of AI do make a pragmatic difference, and it is pragmatic differences that ought to be decisive.

Second, and more controversially, we can view the legal system as a repository of knowledge-a formal accumulation of practical judgments. The law embodies core insights about the way the world works and how we evaluate it. Moreover, in common-law systems judges strive to decide particular cases in a way that best fits the legal landscape-the prior cases, the statutory law, and the constitution. Hence, transforming the abstract debate over the possibility of AI into an imagined hard case forces us to check our intuitions and arguments against the assumptions that underlie social decisions made in many other contexts. By using a thought experiment that explicitly focuses on wide coherence, we increase the chance that the positions we eventually adopt will be in reflective equilibrium with our views about related matters. In addition, the law embodies practical knowledge in a form that is subject to public examination and discussion. Legal materials are published and subject to widespread public scrutiny and discussion. Some of the insights gleaned in the law may clarify our approach to the artificial intelligence debate.