In a series of ten preregistered experiments (N=2043), we investigate the effect of outcome valence on judgments of probability, negligence, and culpability – a phenomenon sometimes labelled moral (and legal) luck. We found that harmful outcomes, when contrasted with neutral outcomes, lead to increased perceived probability of harm ex post, and consequently to increased attribution of negligence and culpability. Rather than simply postulating a hindsight bias (as is common), we employ a variety of empirical means to demonstrate that the outcome-driven (...) asymmetry across perceived probabilities constitutes a systematic cognitive distortion. We then explore three distinct strategies to alleviate the hindsight bias and its downstream effects on mens rea and culpability ascriptions. Not all are successful, but at least some prove promising. They should, we argue, be taken into consideration in criminal jurisprudence, where distortions due to the hindsight bias are likely considerable and deeply disconcerting. (shrink)

In many spheres, the law takes the legal concept of causation to correspond to the folk concept (the correspondence assumption). Courts, including the US Supreme Court, tend to insist on the "common understanding" and that which is "natural to say" (Burrage v. United States) when it comes to expressions relating to causation, and frequently refuse to clarify the expression to juries. As recent work in psychology and experimental philosophy has uncovered, lay attributions of causation are susceptible to a great number (...) of unexpected factors, some of which seem rather peripheral to causation. One of those is the norm effect (Knobe & Fraser, 2008): Agents who, in acting as they do, break a salient norm, are more likely to be considered as having caused a certain consequence than when they do not violate a norm. According to some (e.g., Alicke, 1992) this constitutes a bias. According to others (e.g., Sytsma, 2020), the folk concept of causation is sensitive to normative factors, and there’s nothing wrong with that. In this paper, we explore the question whether the norm effect should be considered a bias from the legal perspective on the one hand, and from the psychological perspective on the other. To do this, we test whether norms which are nonpertinent to the consequences or outright silly also impact causation judgements. The data from two preregistered experiments (total N=593) clearly show they do. This, we argue, makes the bias interpretation plausible from the psychological perspective, and both plausible and problematic from the legal perspective. It also shows that the law should abstain from unreflectively assuming conceptual correspondence between legal and ordinary language concepts. (shrink)

In a series of ten preregistered experiments (N=2043), we investigate the effect of outcome valence on judgments of probability, negligence, and culpability – a phenomenon sometimes labelled moral (and legal) luck. We found that harmful outcomes, when contrasted with neutral outcomes, lead to increased perceived probability of harm ex post, and consequently to increased attribution of negligence and culpability. Rather than simply postulating a hindsight bias (as is common), we employ a variety of empirical means to demonstrate that the outcome-driven (...) asymmetry across perceived probabilities constitutes a systematic cognitive distortion. We then explore three distinct strategies to alleviate the hindsight bias and its downstream effects on mens rea and culpability ascriptions. Not all are successful, but at least some prove promising. They should, we argue, be taken into consideration in criminal jurisprudence, where distortions due to the hindsight bias are likely considerable and deeply disconcerting. (shrink)

This paper presents a series of studies (total N=579) which demonstrate that folk judgments concerning the reasonableness of decisions and actions depend strongly on whether they engender positive or negative consequences. A particular decision is deemed more reasonable in retrospect when it produces beneficial consequences than when it produces harmful consequences, even if the situation in which the decision was taken and the epistemic circumstances of the agent are held fixed across conditions. This finding is worrisome for the law, where (...) the reasonable person standard plays a prominent role. The legal concept of reasonableness is outcome-insensitive: whether the defendant acted in a reasonable fashion or not depends exclusively on her context of action, no matter how things play out. Folk judgments of reasonableness are thus inconsistent with the legal concept of reasonableness. Problematically, in common law jurisdictions, the decision whether a defendant’s behavior was reasonable or not is frequently (though not necessarily) delegated to a lay jury. (shrink)

The reasonable person standard is key to both Criminal Law and Torts. What does and does not count as reasonable behavior and decision-making is frequently deter- mined by lay jurors. Hence, laypeople’s understanding of the term must be considered, especially whether they use it predominately in an evaluative fashion. In this corpus study based on supervised machine learning models, we investigate whether laypeople use the expression ‘reasonable’ mainly as a descriptive, an evaluative, or merely a value-associated term. We find that (...) ‘reasonable’ is predicted to be an evaluative term in the majority of cases. This supports prescriptive accounts, and challenges descriptive and hybrid accounts of the term—at least given the way we operationalize the latter. Interestingly, other expressions often used interchangeably in jury instructions (e.g. ‘careful,’ ‘ordinary,’ ‘prudent,’ etc), however, are predicted to be descriptive. This indicates a discrepancy between the intended use of the term ‘reasonable’ and the understanding lay jurors might bring into the court room. (shrink)

The experimental philosophy of law is a recent movement that aims to inform traditional debates in jurisprudence by conducting empirical research. This paper introduces and provides a systematic overview of the main lines of research in this field. It also covers the most important debates in the literature regarding the implications of these findings for the philosophy and theory of law. It argues that three challenges arise when addressing (old) legal-philosophical questions in (new) experimental ways by drawing normative implications from (...) empirical data: such implications are value-driven, depend on explanations of empirical findings and vary across legal systems. (shrink)

This article explores whether perspective taking has an impact on the ascription of epistemic states. To do so, a new method is introduced which incites participants to imagine themselves in the position of the protagonist of a short vignette and to judge from her perspective. In a series of experiments, perspective proves to have a significant impact on belief ascriptions, but not on knowledge ascriptions. For belief, perspective is further found to moderate the epistemic side-effect effect significantly. It is hypothesized (...) that the surprising findings are driven by the special epistemic authority we enjoy in assessing our own belief states, which does not extend to the assessment of our own knowledge states. (shrink)

Higher courts sometimes assess the constitutionality of law by working through a concrete case, other times by reasoning about the underlying question in a more abstract way. Prior research has found that the degree of concreteness or abstraction with which an issue is formulated can influence people's prescriptive views: For instance, people often endorse punishment for concrete misdeeds that they would oppose if the circumstances were described abstractly. We sought to understand whether the so-called ‘abstract/concrete paradox’ also jeopardizes the consistency (...) of judicial reasoning. In a series of experiments, both lay and professional judges sometimes reached opposite conclusions when reasoning about concrete cases versus the underlying issues formulated in abstract terms. This effect emerged whether participants reasoned with broad principles, such as human dignity, or narrow rules, and was largest among individuals high in trait empathy. Finally, to understand whether people reflectively endorse the discrepancy between abstract and concrete resolutions, we examined their reactions when evaluating both, either simultaneously or sequentially. These approaches revealed no single pattern across lay and expert populations, or exploratory and confirmatory studies. Taken together, our studies suggest that empathic concern plays a greater role in guiding the judicial resolution of concrete cases than in illuminating judges' professed standards—which may result in concrete decisions in violation of their own abstract principles. (shrink)

Recent metaphilosophical debates have focused on the methods/epistemology of philosophy, and the structure of the discipline. The paper reports the results of an exploratory study examining the relationship between personality and both kinds of metaphilosophical view. The findings reported are No important link between personality and attitudes to intuitions, Apparent differences between experts and non-experts as to which subfields are considered central, Only limited evidence that perceptions of centrality are related to personality in minor ways. Although no dramatic relationships between (...) personality and metaphilosophical view are found, the results nonetheless prompt some reflection about the role played by judgements about the centrality of subfields within the discipline. (shrink)

Extant research has shown that ordinary causal judgments are sensitive to normative factors. For instance, agents who violate a norm are standardly deemed more causal than norm-conforming agents in identical situations. In this paper, we explore two competing explanations for the Norm Effect: the Responsibility View and the Bias View. According to the former, the Norm Effect arises because ordinary causal judgment is intimately intertwined with moral responsibility. According to the alternative view, the Norm Effect is the result of a (...) blame-driven bias. In a series of five preregistered experiments (N = 2688), we present evidence that predominantly favours the Bias View. In particular, and against predictions made by the Responsibility View, we show that participants deem agents who violate nonpertinent or silly norms – norms that do not relate to the outcome at hand – as more causal, and that this effect cannot be explained in terms of plausible mediators such as the agent’s foreknowledge and desire, or the foreseeability of harm. We close with a discussion regarding the implications of these findings, in as regards the just assessment of proximate cause in the law. (shrink)

There is a large literature exploring the effect of norms on the attribution of causation. Empirical research on this so-called “norm effect” has predominantly focused on two data points: A situation in which an agent violates a salient norm, and one in which there is no violation of a salient norm. Since the phenomenon is understood in bivalent terms (norm infraction vs. no norm infraction), most explanations thereof have the same structure. In this paper, we report several studies (total N=479) (...) according to which perceived causation depends on the strength of the norm violated – whether strength is conceived in terms of the norm’s strictness, explicitness or associated punishment. Consequently, the norm effect, properly conceived, is not bivalent but graded in nature, the standard data points (norm violation vs. no norm violation) are but a special case of a broader phenomenon. This, we argue, puts pressure on many, if not most, of the current explanations of the norm effect on causation. (shrink)

Ratio Juris, Volume 35, Issue 2, Page 191-222, June 2022.

ZusammenfassungDem sogenannten Knobe-Effekt zufolge bestimmt die moralische Valenz von Nebeneffekten menschlichen Verhaltens die Zuschreibung ihrer absichtlichen Verursachung. Wir argumentieren, dass erstens die empirisch ermittelten sozialpsychologischen Daten den Knobe-Effekt in der üblichen Lesart nicht belegen, vor allem wegen der unvollständigen Untersuchung der entscheidenden moralischen Varianzfaktoren. Zweitens zeigen wir, dass - und wie - eine spezifische Version des traditionellen Prinzips des Doppeleffekts den empirisch bestätigten Teil des Knobe-Effekts philosophisch erklärt. Die Erklärungskraft des Prinzips des Doppeleffekts kann auch als eine Rechtfertigung eben dieses (...) Prinzips gesehen werden. (shrink)