Recent research in moral psychology has attempted to characterize patterns of moral judgments of actions in terms of the causal and intentional properties of those actions. The present study directly compares the roles of consequence, causation, belief and desire in determining moral judgments. Judgments of the wrongness or permissibility of action were found to rely principally on the mental states of an agent, while judgments of blame and punishment are found to rely jointly on mental states and the causal connection (...) of an agent to a harmful consequence. Also, selectively for judgments of punishment and blame, people who attempt but fail to cause harm more are judged more leniently if the harm occurs by independent means than if the harm does not occur at all. An account of these phenomena is proposed that distinguishes two processes of moral judgment: one which begins with harmful consequences and seeks a causally responsible agent, and the other which begins with an action and analyzes the mental states responsible for that action. Ó 2008 Elsevier B.V. All rights reserved. (shrink)

This chapter provides a critical though comprehensive review of the empirical literature on the folk concept of intentional action. Recently, experimental evidence suggested that authors’ judgments about whether an action counts as intentional are sensitive to normative, or evaluative, factors. Evidence for the putative influence of such considerations on ascriptions of intentionality arises from the study of two phenomena, both discovered by Joshua Knobe, namely the Knobe effect and the skill effect. Knobe distinguishes between two kinds of evaluations: the judgment (...) that an action has led to a bad, or good, outcome, and the judgment that one deserves blame, or praise, for a given action. The skill effect and more notably the Knobe Effect are two puzzling phenomena that have drawn a lot of attention, sometimes at the expense of the bigger picture. The chapter also presents the implications for action theory. (shrink)

This chapter contains sections titled: Jurisprudence: Method and Subject Matter Legality and Authority Positivism: Austin vs. Hart The Authority of Law Judicial Discretion Incorporationism and Legality Raz' s Theory of Authority Incorporationism and Authority Conclusion Postscript References.

This chapter contains sections titled: Traditional Natural Law Theory Modern Natural Law Theory Conclusion References.

Moral philosophers, legal theorists, and psychologists who study moral judgment are remarkably agreed in prescribing how to blame people. A blameworthy act occurs when an actor intentionally, negligently or recklessly causes foreseen, or foreseeable, harmful consequences without any compelling mitigating or extenuating circumstances. This simple formulation conveniently forestalls intricacies about how to construe concepts such as will, causation, foresight, and mitigation, but putting that aside for the moment, it seems fair to say that blame “professionals” share compatible conceptions of how (...) to make fair and rational blame ascriptions. Blame “amateurs,” on the other hand, sometimes stretch these rational prescriptions for blame beyond the breaking point. Numerous psychological studies on blame and responsibility, as well as the perplexing outcomes of high-profile criminal and civil trials, demonstrate that everyday blamers are capable of violating virtually every rational prescription that moral philosophers, legal scholars, and rational decision theorists hold dear. (shrink)

Our interest in this paper is to drive a wedge of contention between two different programs that fall under the umbrella of “experimental philosophy”. In particular, we argue that experimental philosophy’s “negative program” presents almost as significant a challenge to its “positive program” as it does to more traditional analytic philosophy.

Among philosophers, there are at least two prevalent views about the core concept of intentional action. View I (Adams 1986, 1997; McCann 1986) holds that an agent S intentionally does an action A only if S intends to do A. View II (Bratman 1987; Harman 1976; and Mele 1992) holds that there are cases where S intentionally does A without intending to do A, as long as doing A is foreseen and S is willing to accept A as a consequence (...) of S’s action. Joshua Knobe (2003a) presents intriguing data that may be taken to support the second view.1 Knobe’s data show an asymmetry in folk judgements. People are more inclined to judge that S did A intentionally, even when not intended, if A was perceived as causing a harm (e.g. harming the environment). There is an asymmetry because people are not inclined to see S’s action as intentional, when not intended, if A is perceived as causing a benefit (e.g. helping the environment). In this paper we will discuss Knobe’s results in detail. We will raise the question of whether his ordinary language surveys of folk judgments have accessed core concepts of intentional action. We suspect that instead Knobe’s surveys are tapping into pragmatic aspects of intentional language and its role in moral praise and blame. We will suggest alternative surveys that we plan to conduct to get at this difference, and we will attempt to explain the pragmatic usage of intentional language. (shrink)

Recently, there has been an increased interest in folk intuitions about freedom and moral responsibility from both philosophers and psychologists. We aim to extend our understanding of folk intuitions about freedom and moral responsibility using an individual differences approach. Building off previous research suggesting that there are systematic differences in folks’ philosophically relevant intuitions, we present new data indicating that the personality trait extraversion predicts, to a significant extent, those who have compatibilist versus incompatibilist intuitions. We argue that identifying groups (...) of people who have specific and diverse intuitions about freedom and moral responsibility offers the possibility for theoretical advancement in philosophy and psychology, and may in part explain why some perennial philosophical debates have proven intractable. (shrink)

Many experimental philosophers are philosophers by training and professional affiliation, but some best work in experimental philosophy has been done by people who do not have advanced degrees in philosophy and do not teach in philosophy departments. This chapter explains that the experimental philosophy is the empirical investigation of philosophical intuitions, the factors that affect them, and the psychological and neurological mechanisms that underlie them. It explores what are philosophical intuitions, and why do experimental philosophers want to study them using (...) the methods of empirical science. The positive program in experimental philosophy shares the goal of the substantial part of traditional philosophy that is concerned with the analysis of important philosophical concepts. The negative program has implications for philosophical projects whose goal is conceptual analysis. There have been a number of responses to the challenge posed by experimental philosophy's negative program. The chapter also focuses on the expertise defense. (shrink)

Moral luck is a puzzling aspect of our psychology: Why do we punish outcomes that were not intended (i.e. accidents)? Prevailing psychological accounts of moral luck characterize it as an accident or error, stemming either from a re‐evaluation of the agent's mental state or from negative affect aroused by the bad outcome itself. While these models have strong evidence in their favor, neither can account for the unique influence of accidental outcomes on punishment judgments, compared with other categories of moral (...) judgment. Why might punishment be particularly sensitive to moral luck? We suggest that such sensitivity is easily understood from the broader perspective of punishment's ultimate adaptive goal: Changing others’ behavior by exploiting their capacity to learn. This pedagogical perspective accounts for the exceptional influence of outcomes on punitive sentiments and makes predictions for additional moderators of punishment. We review evidence supporting the pedagogical hypothesis of punishment and discuss fruitful directions for future research. (shrink)

Ownership rights influence thought and behavior in relation to the physical world and in relation to other people. We review recent research examining the nature of ownership rights, and how young children and adults conceive of them. This research examines issues such as the rights ownership is assumed to confer; whether ownership rights reflect principles specific to ownership or instead depend on more general moral principles; and whether ownership rights are inventions of law and culture, or whether they have a (...) more natural basis. (shrink)

The experimental turn in philosophy has reached several sub-fields including ethics, epistemology, and metaphysics. This paper is among the first to apply experimental techniques to questions in the philosophy of law. Specifically, we examine Lon Fuller's procedural natural law theory. Fuller famously claimed that legal systems necessarily observe eight principles he called "the inner morality of law." We evaluate Fuller's claim by surveying both ordinary people and legal experts about their intuitions about legal systems. We conclude that, at best, we (...) should be skeptical of Fuller's inner morality of law in light of the experimental data. (shrink)

Studies of normal individuals reveal an asymmetry in the folk concept of intentional action: an action is more likely to be thought of as intentional when it is morally bad than when it is morally good. One interpretation of these results comes from the hypothesis that emotion plays a critical mediating role in the relationship between an action’s moral status and its intentional status. According to this hypothesis, the negative emotional response triggered by a morally bad action drives the attribution (...) of intent to the actor, or the judgment that the actor acted intentionally. We test this hypothesis by presenting cases of morally bad and morally good action to seven individuals with deficits in emotional processing resulting from damage to the ventromedial prefrontal cortex (VMPC). If normal emotional processing is necessary for the observed asymmetry, then individuals with VMPC lesions should show no asymmetry. Our results provide no support for this hypothesis: like normal individuals, those with VMPC lesions showed the same asymmetry, tending to judge that an action was intentional when it was morally bad but not when it was morally good. Based on this finding, we suggest that normal emotional processing is not responsible for the observed asymmetry of intentional attributions and thus does not mediate the relationship between an action’s moral status and its intentional status. (shrink)

Understanding ownership rights is necessary for socially appropriate behavior. We provide evidence that preschoolers' and adults' judgments of ownership rights are related to their judgments of bodily rights. Four-year-olds and adults evaluated the acceptability of harmless actions targeting owned property and body parts. At both ages, evaluations did not vary for owned property or body parts. Instead, evaluations were influenced by two other manipulations—whether the target belonged to the agent or another person, and whether that other person approved of the (...) action. Moreover, these manipulations influenced judgments for owned objects and body parts in the same way: When the other person approved of the action, participants' judgments were positive regardless of who the target belonged to. In contrast, when that person disapproved, judgments depended on who the target belonged to. These findings show that young children grasp the importance of approval or consent for ownership rights and bodily rights, and likewise suggest that people's notions of ownership rights are related to their appreciation of bodily rights. (shrink)

We report two experiments supporting the theory that children’s understanding of ownership rights is related to their notions of body rights. Experiment 1 investigated 4- to 7-year-olds’ developing sensitivity to physical contact in their judgments about the acceptability of behaving in relation to owned objects and body parts. Experiment 2 used a simpler design to investigate this in 3- and 4-year-olds. Findings confirmed two predictions of the theory. First, in both experiments, children’s judgments about ownership and body rights were similarly (...) affected by physical contact. Second, judgments about both kinds of rights were yoked in development; age-related changes in judgments about ownership rights were paralleled by changes in judgments about body rights. Our findings have additional import for theories of ownership rights because they suggest that physical contact may be a crucial factor in whether behaviors targeting property are judged to be permissible. 2017 APA, all rights reserved). (shrink)

In German criminal law, intention is the label used not only for cases of knowledge and desire; it also includes cases of what the common law would call recklessness. German criminal law calls its approximation of recklessness dolus eventualis. It is on that concept that the article concentrates. After a brief review of the historical development of the German concept of intention, the author shows that dolus eventualis consists of two components: the cognitive element, which (as in the common law) (...) considers the state of the accused's knowledge that the offence may occur, and a volitional or dispositional element which is unknown to the common law. The author concludes that the volitional or dispositional element is not plausible, and that in any harmonization of concepts of intention in the criminal law of the European countries such an element should not be adopted. (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)

Experimental philosophy is the name for a recent movement whose participants use the methods of experimental psychology to probe the way people think about philosophical issues and then examine how the results of such studies bear on traditional philosophical debates. Given both the breadth of the research being carried out by experimental philosophers and the controversial nature of some of their central methodological assumptions, it is of no surprise that their work has recently come under attack. In this paper we (...) respond to some criticisms of experimental philosophy that have recently been put forward by Antti Kauppinen. Unlike the critics of experimental philosophy, we do not think the fledgling movement either will or should fall before it has even had a chance to rise up to explain what it is, what it seeks to do (and not to do), and exactly how it plans to do it. Filling in some of the salient details is the main goal of the present paper. (shrink)

Retributivist accounts of punishment maintain that it is right to punish wrongdoers, even if the punishment has no future benefits. Research in experimental economics indicates that people are willing to pay to punish defectors. A complementary line of work in social psychology suggests that people think that it is right to punish wrongdoers. This work suggests that people are retributivists about punishment. However, all of the extant work contains an important potential confound. The target of the punishment is expected to (...) be aware of the punitive act. Thus, it's possible that people punish because they want to communicate something to the wrongdoer, e.g. disapproval, the presence of a norm, etc. In three studies, we examine whether people will punish even when the punishee will be ignorant. We find that people are no less likely to punish when the punishee will be ignorant. This finding emerges both in a survey study and in a monetized behavioural decision study. (shrink)

In this paper, I first review some of the recent empirical work on the biasing effect that moral considerations have on folk ascriptions of intentional action. Then, I use Mark Alicke's affective model of blame attribution to explain this biasing effect. Finally, I discuss the relevance of this research - both philosophical and psychological - to the problem of the partiality of jury deliberation. After all, if the immorality of an action does affect folk ascriptions of intentionality, and all serious (...) criminal offenses - e.g., murder and rape - are immoral in addition to being illegal, then a juror's ability to determine the relevant mens rea (i.e., guilty mind) of a defendant in an unbiased way may be seriously undermined. (shrink)

People often judge it unacceptable to directly harm a person, even when this is necessary to produce an overall positive outcome, such as saving five other lives. We demonstrate that similar judgments arise when people consider damage to owned objects. In two experiments, participants considered dilemmas where saving five inanimate objects required destroying one. Participants judged this unacceptable when it required violating another’s ownership rights, but not otherwise. They also judged that sacrificing another’s object was less acceptable as a means (...) than as a side-effect; judgments did not depend on whether property damage involved personal force. These findings inform theories of moral decision-making. They show that utilitarian judgment can be decreased without physical harm to persons, and without personal force. The findings also show that the distinction between means and side-effects influences the acceptability of damaging objects, and that ownership impacts utilitarian moral judgment. (shrink)

Recent experimental fi ndings by Knobe and others ( Knobe, 2003; Nadelhoffer, 2006b; Nichols and Ulatowski, 2007 ) have been at the center of a controversy about the nature of the folk concept of intentional action. I argue that the signifi cance of these fi ndings has been overstated. My discussion is two-pronged. First, I contend that barring a consensual theory of conceptual competence, the signifi cance of these experimental fi ndings for the nature of the concept of intentional action (...) cannot be determined. Unfortunately, the lack of progress in the philosophy of concepts casts doubt on whether such a consensual theory will be found. Second, I propose a new, defl ationary interpretation of these experimental fi ndings, ‘ the trade-off hypothesis ’ , and I present several new experimental fi ndings that support this interpretation. (shrink)

Recent studies point to a surprising divergence between people's use of the concept of _intention_ and their use of the concept of _acting intentionally_. It seems that people's application of the concept of intention is determined by their beliefs about the agent's psychological states whereas their use of the concept of acting intentionally is determined at least in part by their beliefs about the moral status of the behavior itself (i.e., by their beliefs about whether the behavior is morally good (...) or morally bad). These findings raise a number of difficult questions about the relationship between the concept of intention and the concept of acting intentionally. The present paper addresses those questions using a variety of different methods, including conceptual analysis, psychological experimentation, and an examination of people's use of certain expressions in other languages. (shrink)

It is widely believed that the primary function of folk psychology lies in the prediction, explanation and control of behavior. A question arises, however, as to whether folk psychology has also been shaped in fundamental ways by the various other roles it plays in people’s lives. Here I approach that question by considering one particular aspect of folk psychology – the distinction between intentional and unintentional behaviors. The aim is to determine whether this distinction is best understood as a tool (...) used in prediction, explanation and control or whether it has been shaped in fundamental ways by some other aspect of its use. (shrink)

There has been a long-standing dispute in the philosophical literature about the conditions under which a behavior counts as 'intentional.' Much of the debate turns on questions about the use of certain words and phrases in ordinary language. The present paper investigates these questions empirically, using experimental techniques to investigate people's use of the relevant words and phrases. g.

Five experiments provide evidence for a class of ‘dual character concepts.’ Dual character concepts characterize their members in terms of both (a) a set of concrete features and (b) the abstract values that these features serve to realize. As such, these concepts provide two bases for evaluating category members and two different criteria for category membership. Experiment 1 provides support for the notion that dual character concepts have two bases for evaluation. Experiments 2-4 explore the claim that dual character concepts (...) have two different criteria for category membership. The results show that when an object possesses the appropriate concrete features, but does not fulfill the appropriate abstract value, it is judged to be a category member in one sense but not in another. Finally, Experiment 5 uses the theory developed here to construct artificial dual character concepts and examines whether participants react to these artificial concepts in the same way as naturally occurring dual character concepts. The present studies serve to define the nature of dual character concepts and distinguish them from other types of concepts (e.g., natural kind concepts), which share some, but not all of the properties of dual character concepts. More broadly, these phenomena suggest a normative dimension in everyday conceptual representation. (shrink)

Moral philosophers and psychologists often assume that people judge morally lucky and morally unlucky agents differently, an assumption that stands at the heart of the Puzzle of Moral Luck. We examine whether the asymmetry is found for reflective intuitions regarding wrongness, blame, permissibility, and punishment judg- ments, whether people’s concrete, case-based judgments align with their explicit, abstract principles regarding moral luck, and what psychological mechanisms might drive the effect. Our experiments produce three findings: First, in within-subjects experiments favorable to reflective (...) deliberation, the vast majority of people judge a lucky and an unlucky agent as equally blameworthy, and their actions as equally wrong and permissible. The philosophical Puzzle of Moral Luck, and the challenge to the very possibility of systematic ethics it is frequently taken to engender, thus simply do not arise. Second, punishment judgments are significantly more outcome- dependent than wrongness, blame, and permissibility judgments. While this constitutes evidence in favor of current Dual Process Theories of moral judgment, the latter need to be qualified: punishment and blame judgments do not seem to be driven by the same process, as is commonly argued in the literature. Third, in between-subjects experiments, outcome has an effect on all four types of moral judgments. This effect is mediated by negligence ascriptions and can ultimately be explained as due to differing probability ascriptions across cases. (shrink)

A coherent practice of mens rea (‘guilty mind’) ascription in criminal law presupposes a concept of mens rea which is insensitive to the moral valence of an action’s outcome. For instance, an assessment of whether an agent harmed another person intentionally should be unaffected by the severity of harm done. Ascriptions of intentionality made by laypeople, however, are subject to a strong outcome bias. As demonstrated by the Knobe effect, a knowingly incurred negative side effect is standardly judged intentional, whereas (...) a positive side effect is not. We report the first empirical investigation into intentionality ascriptions made by professional judges, which finds (i) that professionals are sensitive to the moral valence of outcome type, and (ii) that the worse the outcome, the higher the propensity to ascribe intentionality. The data shows the intentionality ascriptions of professional judges to be inconsistent with the concept of mens rea supposedly at the foundation of criminal law. (shrink)

Experimental restrictionists have challenged philosophers’ reliance on intuitions about thought experiment cases based on experimental findings. According to the expertise defense, only the intuitions of philosophical experts count—yet the bulk of experimental philosophy consists in studies with lay people. In this paper, we argue that direct strategies for assessing the expertise defense are preferable to indirect strategies. A direct argument in support of the expertise defense would have to show: first, that there is a significant difference between expert and lay (...) intuitions; second, that expert intuitions are superior to lay intuitions; and third, that expert intuitions accord with the relevant philosophical consensus. At present, there is only little experimental evidence that bears on these issues. To advance the debate, we conducted two new experiments on intuitions about knowledge with experts and lay people. Our results suggest that the intuitions of epistemological experts are superior in some respects, but they also pose an unexpected challenge to the expertise defense. Most strikingly, we found that even epistemological experts tend to ascribe knowledge in fake-barn-style cases. This suggests that philosophy, as a discipline, might fail to adequately map the intuitions of its expert practitioners onto a disciplinary consensus. (shrink)

According to the ‘expertise defence’, experimental findings suggesting that intuitive judgments about hypothetical cases are influenced by philosophically irrelevant factors do not undermine their evidential use in (moral) philosophy. This defence assumes that philosophical experts are unlikely to be influenced by irrelevant factors. We discuss relevant findings from experimental metaphilosophy that largely tell against this assumption. To advance the debate, we present the most comprehensive experimental study of intuitive expertise in ethics to date, which tests five well- known biases of (...) judgment and decision-making among expert ethicists and laypeople. We found that even expert ethicists are affected by some of these biases, but also that they enjoy a slight advantage over laypeople in some cases. We discuss the implications of these results for the expertise defence, and conclude that they still do not support the defence as it is typically presented in (moral) philosophy. (shrink)

Much of the philosophical literature on causation has focused on the concept of actual causation, sometimes called token causation. In particular, it is this notion of actual causation that many philosophical theories of causation have attempted to capture.2 In this paper, we address the question: what purpose does this concept serve? As we shall see in the next section, one does not need this concept for purposes of prediction or rational deliberation. What then could the purpose be? We will argue (...) that one can gain an important clue here by looking at the ways in which causal judgments are shaped by people‘s understanding of norms. (shrink)

Despite pervasive variation in the content of laws, legal theorists and anthropologists have argued that laws share certain abstract features and even speculated that law may be a human universal. In the present report, we evaluate this thesis through an experiment administered in 11 different countries. Are there cross‐cultural principles of law? In a between‐subjects design, participants (N = 3,054) were asked whether there could be laws that violate certain procedural principles (e.g., laws applied retrospectively or unintelligible laws), and also (...) whether there are any such laws. Confirming our preregistered prediction, people reported that such laws cannot exist, but also (paradoxically) that there are such laws. These results document cross‐culturally and –linguistically robust beliefs about the concept of law which defy people's grasp of how legal systems function in practice. (shrink)

ABSTRACT Most theorists agree that our social order includes a distinctive legal dimension. A fundamental question is that of whether reference to specific legal phenomena always involves a commitment to a particular moral view. Whereas many philosophers advance the ‘positivist’ claim that any correspondence between morality and the law is just a function of political circumstance, natural law theorists insist that law is intrinsically moral. Each school claims the crucial advantage of consistency with our folk concept. Drawing on the notion (...) of dual character concepts, we develop a set of hypotheses about the intuitive relation between a rule’s moral and legal aspects. We then report a set of studies that conflict unexpectedly with the predictions by legal positivists. Intuitively, an evil rule is not a fully-fledged instance of law. (shrink)

We examined the effects of order of presentation on the moral judgments of professional philosophers and two comparison groups. All groups showed similar-sized order effects on their judgments about hypothetical moral scenarios targeting the doctrine of the double effect, the action-omission distinction, and the principle of moral luck. Philosophers' endorsements of related general moral principles were also substantially influenced by the order in which the hypothetical scenarios had previously been presented. Thus, philosophical expertise does not appear to enhance the stability (...) of moral judgments against this presumably unwanted source of bias, even given familiar types of cases and principles. (shrink)

After an initial discussion (§i) of what a theory of criminal law might amount to, I sketch (§ii) the proper aims of a liberal, republican criminal law, and discuss (§§iii–iv) two central features of such a criminal law: that it deals with public wrongs, and provides for those who perpetrate such wrongs to be called to public account. §v explains why a liberal republic should maintain such a system of criminal law, and §vi tackles the issue of criminalization—of how we (...) should determine the proper scope of the criminal law. (shrink)

Within legal scholarship and practice, among the most pervasive tasks is the interpretation of texts. And within legal interpretation, perhaps the most pervasive inquiry is the search for “ordinary meaning.” Jurists often treat ordinary meaning analysis as an empirical inquiry, aiming to discover a fact about how people understand language. When evaluating ordinary meaning, interpreters rely on dictionary definitions or patterns of common usage, increasingly via “legal corpus linguistics” approaches. However, the most central question about these popular methods remains open: (...) Do they reliably reflect ordinary meaning? This Article presents a series of experiments that assess whether (a) dictionary definitions and (b) common usage data reflect (c) how people actually understand language today. -/- The Article elaborates the implications of two main experimental results. First, neither the dictionary nor legal corpus linguistics methods reliably track ordinary people’s judgments about meaning. This shifts the argumentative burden to jurists who rely on these tools to identify “ordinary meaning” or “original public meaning”: these views must articulate and demonstrate a reliable method of analysis. Moreover, this divergence illuminates several interpretive fallacies. For example, advocates of legal corpus linguistics often contend that the nonappearance of a specific use in a corpus indicates that the use is not part of the relevant term’s ordinary meaning. The experiments reveal this claim to be a “Nonappearance Fallacy.” Ordinary meaning exceeds datasets of common usage — even very large ones. -/- Second, dictionary and legal corpus linguistics verdicts diverge dramatically from each other. Part of that divergence is explained by the finding that broad dictionary definitions tend to direct interpreters to extensive interpretations, while data of common usage tends to point interpreters to more prototypical cases. This suggests two different criteria that are often relevant in interpretation: a more extensive criterion and a more narrow, prototypical criterion. Although dictionaries and corpus linguistics might, in some cases, help us identify these criteria, a hard legal-philosophical question remains: Which of these two criteria should guide the interpretation of terms and phrases in legal texts? Insofar as there is no compelling case to prefer one, the results suggest that dictionary definitions, legal corpus linguistics, or even other more scientific measures of meaning may not be equipped in principle to deliver simple and unequivocal answers to inquiries about the so-called “ordinary meaning” of legal texts. (shrink)

“Experimental jurisprudence” draws on empirical data to inform questions typically associated with jurisprudence or legal theory. Scholars in this flourishing movement conduct empirical studies about a variety of legal language and concepts. Despite the movement’s growth, its justification is still opaque. Jurisprudence is the study of deep and longstanding theoretical questions about law’s nature, but “experimental jurisprudence,” it might seem, simply surveys laypeople. This Article elaborates and defends experimental jurisprudence. Experimental jurisprudence, appropriately understood, is not only consistent with traditional jurisprudence; (...) it is an essential branch of it. (shrink)

Prescriptive rules guide human behavior across various domains of community life, including law, morality, and etiquette. What, specifically, are rules in the eyes of their subjects, i.e., those who are expected to abide by them? Over the last sixty years, theorists in the philosophy of law have offered a useful framework with which to consider this question. Some, following H. L. A. Hart, argue that a rule’s text at least sometimes suffices to determine whether the rule itself covers a case. (...) Others, in the spirit of Lon Fuller, believe that there is no way to understand a rule without invoking its purpose — the benevolent ends which it is meant to advance. In this paper we ask whether people associate rules with their textual formulation or their underlying purpose. We find that both text and purpose guide people’s reasoning about the scope of a rule. Overall, a rule’s text more strongly contributed to rule infraction decisions than did its purpose. The balance of these considerations, however, varied across experimental conditions: In conditions favoring a spontaneous judgment, rule interpretation was affected by moral purposes, whereas analytic conditions resulted in a greater adherence to textual interpretations. In sum, our findings suggest that the philosophical debate between textualism and purposivism partly reflects two broader approaches to normative reasoning that vary within and across individuals. Keywords: , the concept of law, rules, legal psychology, Hart, Fuller. (shrink)

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. (shrink)

A classic debate concerns whether reasonableness should be understood statistically (e.g., reasonableness is what is common) or prescriptively (e.g., reasonableness is what is good). This Article elaborates and defends a third possibility. Reasonableness is a partly statistical and partly prescriptive “hybrid,” reflecting both statistical and prescriptive considerations. Experiments reveal that people apply reasonableness as a hybrid concept, and the Article argues that a hybrid account offers the best general theory of reasonableness. -/- First, the Article investigates how ordinary people judge (...) what is reasonable. Reasonableness sits at the core of countless legal standards, yet little work has investigated how ordinary people (i.e., potential jurors) actually make reasonableness judgments. Experiments reveal that judgments of reasonableness are systematically intermediate between judgments of the relevant average and ideal across numerous legal domains. For example, participants’ mean judgment of the legally reasonable number of weeks’ delay before a criminal trial (ten weeks) falls between the judged average (seventeen weeks) and ideal (seven weeks). So too for the reasonable num- ber of days to accept a contract offer, the reasonable rate of attorneys’ fees, the reasonable loan interest rate, and the reasonable annual number of loud events on a football field in a residential neighborhood. Judgment of reasonableness is better predicted by both statistical and prescriptive factors than by either factor alone. -/- This Article uses this experimental discovery to develop a normative view of reasonableness. It elaborates an account of reasonableness as a hybrid standard, arguing that this view offers the best general theory of reasonableness, one that applies correctly across multiple legal domains. Moreover, this hybrid feature is the historical essence of legal reasonableness: the original use of the “reasonable person” and the “man on the Clapham omnibus” aimed to reflect both statistical and prescriptive considerations. Empirically, reasonableness is a hybrid judgment. And normatively, reasonableness should be applied as a hybrid standard. (shrink)