First, let me congratulate Eddy, Thomas, and the other organizers of the Workshop on Experimental Philosophy that was held at the outset of this year's meeting of the SPP. It was a terrific event, and I was delighted to have the opportunity to participate in it.
My talk at the workshop focused on "Intuitions of Negligence"--those intuitive judgments of reasonableness that jurors are asked to render every day in courtrooms across the country about cases involving unintentional harm. As I remarked, these judgments are quite interesting from a cognitive science/experimental philosophy perspective. First, jurors are not given much guidance on how to decide whether given conduct is negligent. Rather, they are simply told to consult their own sense of how a reasonably prudent person would have acted under the circumstances. New York's pattern jury instructions are typical in this regard:
"Negligence is lack of ordinary care. It is a failure to use that degree of care that a reasonably prudent person would have used under the same circumstances. Negligence may arise from doing an act that a reasonably prudent person would not have done under the circumstances, or, on the other hand, from failing to do an act that a reasonably prudent person would have done under the same circumstances."
There are minor variations across jurisdictions: some states use the phrase "reasonably careful person" instead of "reasonably prudent person," for example. But the fact remains that, in virtually all American jurisdictions, juries are not given much guidance on the negligence issue, beyond being asked to consider what a reasonably prudent (or careful) person would have done in the same situation.
Second, American juries are generally not required to explain or justify their intuitions of negligence. Instead, they are simply asked to render a yes-or-no verdict, without accompanying reasons. (The trial judge or a reviewing court may override this determination, of course, but the dominant trend in American law is to permit juries wide latitude in making this decision.) While this practice has been criticized, it arguably reflects a sound appreciation of certain inherent limitations of human psychology. In many cognitive domains, intuitive judgments are guided by unconscious principles, but these principles are difficult or impossible to recover after the fact through ordinary processes of reflection or introspection. As a result, an individual's post hoc explanations of her judgments are often misleading, unreliable, or altogether inaccurate. Yet the judgments themselves often appear on reflection to be sound, and the computations supporting them are often surprisingly complex and sophisticated. The locus of certitude, therefore, is correctly located in the intuitive judgments themselves, rather than their accompanying justifications. The ability of ordinary language users to judge whether a novel expression in their language is acceptable or unacceptable is one obvious illustration of this phenomenon, but there are many other familiar examples throughout the cognitive sciences. Brian Scholl offered some nice examples at the workshop, drawn from the study of visual perception.
Much recent work in moral psychology, to which many readers of this blog have contributed, suggests that ordinary moral cognition may fall into the same general pattern. The unconscious computational character of intuitive moral judgment, however, must be shown and not merely asserted. This is what I have sought to do in a new paper on moral grammar and intuitive jurisprudence, which is forthcoming in a volume on moral judgment and decision making in the Psychology of Learning and Motivation series.
The paper, which is a slightly revised and reformatted draft of the version that was recently posted on Legal Theory Blog, incorporates my remarks at the workshop on how a five-variable "moral calculus of risk" can be used to predict and explain moral intuitions in a wide variety of cases involving unintentional harm. Spurred on by some interesting methodological discussions that appeared recently on this blog, Leiter Reports (see, e.g., Jason Stanley's posts here and here), and Savage Minds (see here), the paper also attempts to integrate and serve as a bridge of sorts between experimental philosophy and more traditional philosophy (Descartes, Hume, Kant, Mill, Brentano, etc.), along with relevant work in linguistics and cognitive science (Chomsky, Fodor, Rey, Spelke, etc.), jurisprudence (Bentham, Terry, Salmond, Cardozo, etc.), anthropology (Durkheim, Gluckman, Geertz, etc.), and other disciplines. The paper is therefore somewhat ambitious, and I would welcome comments, criticisms, or suggestions from interested readers. In addition, if any graduate students, post-doc's, or others would be interested in collaborating to gather data on the 14 new trolley problems in Table 7, you should feel free to contact me at firstname.lastname@example.org.