Legal Theory Blog

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.

Sunstein & Vermeule on Unrestricted Interrogation of Minors Not Yet Shown to Have Engaged in Culpable Behaviors

Cass Sunstein and Adrian Vermeule have posted Unrestricted Interrogation of Minors Not Yet Shown to Have Engaged in Culpapble Behaviors on SSRN.  Here is the abstract:

Relatively unsophisticated analysis of the problem of unrestricted interrogation of minors who have not been demonstrated to have engaged in culpable behaviors often begins with the assumption that such potentially harsh interrogation would violate a deontic obligaton.  This kind of moral objection to the harsh interrogative techniques frequently depends on a distinction between acts and omissions, but that distinction is misleading in this context, because government is a special kind of moral agent. Moral objections based on deontic obligations depend on a distinction between acts and omissions, but that distinction is inapplicable to actions by the state for which the obligation to prevent harm stands on an equal footing with the obligation not to cause harm.

We demonstrate that the act-omission distinction is a heuristic or mental short-cut, that generally work wells, but that can also lead to systematic errors when applied in the context of government action.  For example, in the case of harsh interrogation of innocent children, the act-omission heuristic is especially dangerous because it may lead to systematic blindness to the possibility of harsh interrogaton-harsh interrogation tradeoffs.  Such tradeoffs can occur because it may be the case that the harsh interrogation of one innocent child would result in prevention of the harsh interrogation (or equivalent suffering) of many innocent children.  The state's obligation to prevent harsh interrogaton or equivalent suffering caused by actors other than the state is morally equivalent to the state's obligation not to directly engage in harsh interrogaton.  For this reason, the state is morally obligated to consider harsh-interrogaton tradeoffs.

Such harsh-interrogatoin tradeoffs are especially salient because of recent research using functional MRI (magenetic resonance imaging) on the psychology of psychopathic terrorists.  When a sample of such terrorists was asked to decide whether (i) to reveal the location of an explosive device or (ii) to refrain from revealing with the consequence that their own children would be tortured, the functional MRI imagery revealed that the brain state of the subjects was identical to brain states that typically accompany surrender and compliance behaviors.  Although this research is currently inconclusive and may be subject to methodological challenge, we assume that it is correct for the purpose of this investigation.

The cognitive errors produced by the act-omission distinction in the case of torturing innocent children are of special concern because of the possibility that public endorsement of such errors will produce norm cascades.  Because of the high emotional salience of child torture, observation of the act-omission distinction by the state in this case could lead to the reinforcement of the distinction in other similar situations.  The emergence of a norm prohibiting intentional action by the state that constiutes torture of children could lead to the emergence of irrational norms against other intentional acts that violate superficially attractive deontic prohibitions, e.g., norms against the execution of innocent defendants, norms against unjust wars, norms against deliberate deception by government officials, and so forth.  In the worst case scenario, irrational respect for human life, human rights, and transparent democratic processes might foreclose nuanced consideration of the full range of costs and benefits of torture, the killing of innocents, and deceptive propaganda.  For this reason, we conclude that the optimal policy is to prevent the initiation of a catastrophic norm cascade.  Given our assumptions, there is a moral obligation for the state to engage in the torture of innocent children.

Alm on Contractualism and the Duties of Compensation & Reciprocity

David Alm has posted Contractualism, Reciprocity, Compensation on the Internet. Here is a taste:

TWO GENERALLY RECOGNIZED moral duties are to reciprocate benefits one has received from others and to compensate harms one has done to others. In this paper I want to show that it is not possible to give an adequate account of either duty – or at least one that corresponds to our actual practices – within a contractualist moral theory of the type developed by T. M. Scanlon (1982, 1998). This fact is interesting in its own right, as contractualism is a leading contemporary contender among deontological moral theories, and the two duties I have mentioned are fairly standard ingredients of such theories.1 But it also serves to highlight a general problem with contractualism, at least in Scanlon’s version – namely its one-dimensional view of the keystone of any plausible deontological theory: the idea of respect for persons.

Gowans on Virtue and Nature

Christopher W. Gowans (Philosophy, Fordham University) has posted Virtue and Nature on the Internet. Here is the abstract:

The Neo-Aristotelian ethical naturalism of Philippa Foot and Rosalind Hursthouse purports to establish a naturalistic criterion for the virtues. Specifically, by developing a parallel between the natural ends of nonhuman animals and the natural ends of human beings, they argue that character traits are justified as virtues by the extent to which they promote and do not inhibit natural ends such as self-preservation, reproduction, and the well-being of one’s social group. I argue that the approach of Foot and Hursthouse cannot provide a basis for moral universalism, the widely-accepted idea that each human being has moral worth and thus deserves significant moral consideration. Foot and Hursthouse both depict a virtuous agent as implicitly acting in accord with moral universalism. However, with respect to charity, a virtue they both emphasize, their naturalistic criterion (especially in the more elaborate form developed by Hursthouse) at best provides a warrant for a restricted form of charity that extends only to a limited number of persons. There is nothing in the natural ends of human beings, as Foot and Hursthouse understand these, that gives us a reason for having any concern for the well-being of human beings as such.

Smith on Reliance

Matthew Smith has posted Reliance on the Internet.  Here is a taste:

Political philosophers, moral theorists and legal theorists have long emphasized the fragility of our agency – how chance can render our best-laid plans into little more than inert fantasies. The fragility is not due to akrasia but to the fact that each of us must rely upon forces beyond our control (and just as often beyond our comprehension) in order for our plans to be successful. This fact of reliance – the fact of the deep significance of reliance in our lives – is a central theme of Thomas Hobbes’ argument that in the state of nature, where it is irrational to rely upon others to keep their covenants, there is infamously “no account of time; no arts; no letters; no society… and the life of man [is] solitary, poor, nasty, brutish, and short.”2 More recently, Rawls’ defense of the difference principle is, at least in part, based upon the recognition that each person relies upon other persons in a reciprocal cooperative scheme for the provision of primary goods.3 Political philosophers are not the only ones alive (or criticizably blind) to the fact of reliance: in ethics, reliance is at the heart of a leading theory of promising,4 and plays the central role in highly influential theories of trust;5 moral philosophers have for a generation been acutely aware of the threat of so-called moral luck, i.e., the way in which we rely on factors beyond our control to determine the moral valence of our actions;6 in jurisprudence, the concept of reliance damages is a core concept in the theory of contracts;7 and finally, ancient thinkers were deeply sensitive to the fact of reliance, as we can see, for example, in Aristotle’s argument that eudaimonia requires good training by others when young and good luck when old.8 From political theory to ethics to law, the fact of reliance is recognized as a crucial feature of human life.

Rosati on Moral Objectivism & Relational Good

Connie S. Rosati (Philosophy, University of Arizona) has posted Objectivism and Relational Good on the Internet. Here is the abstract:

In his critique of egoism as a doctrine of ends, G. E. Moore famously challenges the idea that something can be “good for” someone. Donald Regan has recently revived and developed the Moorean challenge, making explicit its implications for the very idea of individual welfare. If the Moorean is right, there is no distinct, normative property good for, and so no plausible objectivism about ethics could be welfarist. In this essay, I undertake to address the Moorean challenge, clarifying our theoretical alternatives so that we may better decide what to admit into our moral ontology and better assess what may be at stake in whether objectivists treat good or good for (or neither) as fundamental. I compare the Moorean and welfarist pictures of value, providing an account of the form and function of good for. According to this account “good for” expresses a distinct relational value that has its source in the value of persons. Good for value is thus a form of extrinsic value that provides agent-neutral reasons for action, and it plays a pervasive normative role in regulating child rearing, guiding individual life choices, and shaping social policy formation.

Highly recommended.

Hill on Moral Constructivism

Thomas E. Hill (Philosophy, University of North Carolina at Chapel Hill) has posted Moral Constructivism as a Task: Sources and Limits on the Internet. Here is the abstract:

This essay first distinguishes different questions regarding moral objectivity and relativism and then sketches a broadly Kantian position on two of these questions. First, how, if at all, can we derive, justify, or support specific moral principles and judgments from more basic moral standards and values? Second, how, if at all, can the basic standards such as my broadly Kantian perspective, be defended? Regarding the first question, the broadly Kantian position is that from ideas in Kant's later formulations of the Categorical Imperative, especially human dignity and rational autonomous law-making, we can develop an appropriate moral perspective for identifying and supporting more specific principles. Both the deliberative perspective and the derivative principles can be viewed as “constructed,” but in different senses. In response to the second question, the essay examines two of Kant's strategies for defending his basic perspective and the important background of his arguments against previous moral theories.

Tom Hill taught the first ethics course I took at UCLA in the late 70s!  His work on Kantian moral philosophy is superb.