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)

Rules are a central component of such diverse enterprises as law, morality, language, games, religion, etiquette, and family governance, but there is often confusion about what a rule is, and what rules do. Offering a comprehensive philosophical analysis of these questions, this book challenges much of the existing legal, jurisprudential, and philosophical literature, by seeing a significant role for rules, an equally significant role for their stricter operation, and making the case for rules as devices for the allocation of power (...) among decision-makers. (shrink)

Thought experiments have played a central role in philosophical methodology, largely as a means of elucidating the nature of our concepts and the implications of our theories.1 Particular attention is given to widely shared “folk” intuitions – the basic untutored intuitions that the layperson has about philosophical questions.2 The folk intuition is meant to underlie our core metaphysical concepts, and philosophical analysis is meant to explicate or sometimes refine these naïve concepts. Consistency with the deliverances of folk intuitions is a (...) sign that the philosopher is making contact with his object of interest. In order to explore folk concepts, people are often asked to provide their intuitions about a state of affairs in some alternate universe or possible world, one that differs in particular, precise ways from the way things are in the actual world. Here we provide evidence that people’s intuitions about moral responsibility sometimes diverge across worlds even when the facts about these worlds are the same. Which world one considers actual affects at least some philosophical judgments, suggesting that it is not just possible worlds to which our intuitions are tied. We will present several possible explanations for the asymmetry we have identified, and we’ll consider some implications for philosophical intuition. (shrink)

In this paper we discuss studies that show that most people do not find determinism to be incompatible with free will and moral responsibility if determinism is described in a way that does not suggest mechanistic reductionism. However, if determinism is described in a way that suggests reductionism, that leads people to interpret it as threatening to free will and responsibility. We discuss the implications of these results for the philosophical debates about free will, moral responsibility, and determinism.

Florida State University In a series of recent papers both Joshua Knobe (2003a; 2003b; 2004) and I (2004a; 2004b; forthcoming) have published the results of some psychological experiments that show that moral considerations influence folk ascriptions of intentional action in both non-side effect and side effect cases.1 More specifically, our data suggest that people are more likely to judge that a morally negative action or side effect was brought about intentionally than they are to judge that a structurally similar non-moral (...) action or side effect was brought about intentionally. So, for instance, if two individuals A and B place a single bullet in a six shooter, spin the chamber, aim the gun, and pull the trigger, but A shoots a person and B shoots a target, people are more likely to say that A shot the person intentionally than they are to say that B shot the target intentionally— even though their respective chances of success (viz., one-in-six) and their control over the outcome are identical in both cases. And while Knobe and I agree that our research creates difficulties for any analysis of the folk concept of intentional action that ignores the biasing effect of moral considerations, we disagree about how best to explain this effect. I have suggested that the moral blameworthiness of an agent can influence folk intuitions about intentional action. In a recent response to my work, Knobe and Mendlow (2004) reject this claim on two separate grounds—one a priori, one empirical. By their lights, not only is my view conceptually confused, but it also allegedly fails to explain the results of a recent experiment they have conducted. On Knobe and Mendlow’s view, it is.. (shrink)

For some reason, participants hold agents more responsible for their actions when a situation is described concretely than when the situation is described abstractly. We present examples of this phenomenon, and survey some attempts to explain it. We divide these attempts into two classes: affective theories and cognitive theories. After criticizing both types of theories we advance our novel hypothesis: that people believe that whenever a norm is violated, someone is responsible for it. This belief, along with the familiar workings (...) of cognitive dissonance theory, is enough to not only explain all of the abstract/concrete paradoxes, but also explains seemingly unrelated effects, like the anthropomorphization of malfunctioning inanimate objects. (shrink)

Some theorists think that the more we get to know about the neural underpinnings of our behaviors, the less likely we will be to hold people responsible for their actions. This intuition has driven some to suspect that as neuroscience gains insight into the neurological causes of our actions, people will cease to view others as morally responsible for their actions, thus creating a troubling quandary for our legal system. This paper provides empirical evidence against such intuitions. Particularly, our studies (...) of folk intuitions suggest that (1) when the causes of an action are described in neurological terms, they are not found to be any more exculpatory than when described in psychological terms, and (2) agents are not held fully responsible even for actions that are fully neurologically caused. (shrink)

People tend to contribute more—and think they have stronger obligations to contribute more—to rescuing an identified victim rather than a statistical one. Indeed, they are often disposed to contribute more to rescuing a single identified victim than a greater number of statistical ones. By an “identified victim,” I mean Terry Q., lying injured in the passenger seat of the wrecked automobile on the corner of Main Street and Broadway, or Jessica McClure, the child who fell into the Texas well in (...) 1987 and whose family was sent $700,000 in donations for her. We need not know their names, however, and we can accept a very minimal form of identification. By a “statistical victim,” I mean the person who, extrapolating from traffic records, will be in a similar, serious car accident tomorrow (and may then be identified), or the children who will fall into wells next year if we do not cap them better than we did the well that trapped Jessica. Does this disposition (or perceived obligation) have any normative force? I initially thought there could be no such normative force, but consequentialist and nonconsequentialist arguments, pro and con, have convinced me that reasonable people can disagree with each other. This disagreement poses a problem for political philosophy: how should policy choices take such disagreement into account? (shrink)

Responding to recent concerns about the reliability of the published literature in psychology and other disciplines, we formed the X-Phi Replicability Project to estimate the reproducibility of experimental philosophy. Drawing on a representative sample of 40 x-phi studies published between 2003 and 2015, we enlisted 20 research teams across 8 countries to conduct a high-quality replication of each study in order to compare the results to the original published findings. We found that x-phi studies – as represented in our sample (...) – successfully replicated about 70% of the time. We discuss possible reasons for this relatively high replication rate in the field of experimental philosophy and offer suggestions for best research practices going forward. (shrink)

The study is focused on analysing formalism which is a strategy of applying laws by stressing the formal features of the law, even if the consequences of the strategy like that are difficult to accept in light of legal principles and the general requirement of equity. Contrary to the common view presented in the legal literature, the study sets out arguments that the formalism is neither justified in the tradition of legal positivism, neither in the idea of the rule of (...) law. In particular it is not true that formalism secures stability and predictability of laws application. On the other hand, a non-formalistic approach to applying laws, consisting in a simultaneous application of strict rules and general principles and in acknowledging the purpose and the function of the law as important factors, allows for realising the values that are traditionally linked with legal positivism. That non-formalistic approach to applying laws, called in the study 'interpretative holism', was supported by a wide use of contemporary philosophy of language, in particular the Kripke-Putnam semantics and the findings of the contemporary philosophy of law and legal theory. -/- Praca jest poświęcona analizie zjawiska formalizmu, które jest strategią stosowania prawa, podlegająca na podkreśleniu wagi formalnych cech prawa, nawet jeśli strategia taka prowadzi do rezultatów trudnych do zaakceptowania z punktu widzenia zasad prawa albo ogólnych wymogów słuszności. Przeciwnie do dotychczasowych stanowisk reprezentowanych w literaturze, w pracy przedstawione są argumenty, że formalistyczne podejście do stosowania prawa nie ma uzasadnienia, ani w koncepcji pozytywizmu prawniczego, ani w koncepcji rządów prawa. Z drugiej strony nieformalistyczne podejście do stosowania prawa, które polega głównie na współstosowaniu reguł i zasad oraz na uwzględnianiu celu i funkcji prawa, pozwala na realizację wartości tradycyjnie przypisywanych koncepcji pozytywizmu prawniczego. Ta nieformalistyczna strategia stosowania prawa, nazywana w pracy holizmem interpretacyjnym, została w pracy uzasadniona poprzez szerokie wykorzystanie współczesnej filozofii języka, w szczególności tzw. semantyki Kripkego-Putnama oraz współczesnego dorobku polskiej i zagranicznej teorii i filozofii prawa.". (shrink)

In "The Rule of Rules" Larry Alexander and Emily Sherwin examine this dilemma.

Psychologists have recently begun to study the psychological dimensions of judging, but to date almost all of the research has been on lay experimental subjects. Implicit in the research, therefore, is that the judge's attributes as a human bring are more important than the judge's attribute's as lawyer and/or as judge in explaining judicial behavior. This may possibly be true, and it is relatively consistent with a Legal Realist understanding of judges and judging, but there remains a need for research (...) directed specifically to the question whether judges by virtue of legal training, self-selection to judging, or judicial experience think and reason and make decisions differently from lay people. More specifically, when judges engage in tasks typically reserved to judges - finding and interpreting the relevant law, most prominently - are their cognitive processes different from those of lay people engaged in analogous tasks, and from those of lay people engaged in different and more fact-focused tasks? Until we can answer these questions based on systematic research, we will not know whether there is a psychology of judging at all, as opposed simply to general psychology applied to some of the tasks in which judges, like all other decision makers, engage. (shrink)

Legal decisions and theories are frequently condemned as formalistic, yet little discussion has occurred regarding exactly what the term "'formalism" means. In this Article, Professor Schauer examines divergent uses of the term to elucidate its descriptive content. Conceptions offormalism, he argues, involve the notion that rules constrict the choice of the decisionmaker. Our aversion to formalism stems from denial that the language of rules either can or should constrict choice in this way. Yet Professor Schauer argues that this aversion to (...) formalism should be rethought: At times language both can and should restrict decisionmakers. Consequently, the term "'formalistic" should not be used as a blanket condemnation of a decisionmaking process; instead the debate regarding decision according to rules should be confronted on its own terms. (shrink)

Given far-reaching changes in the legal systems of East Central Europe since the mid-1990s, one might expect administrative court judges to have modified the way in which they decide cases, in particular by embracing less formalistic adjudication strategies. Relying on an original dataset of over one thousand business-related cases from the Czech Republic, Hungary and Poland, this article shows that – despite some variation across countries and time – judges have largely failed to respond to the incentives contained in the (...) new constitutional frameworks. They continue to adopt the most-locally-applicable-rule approach and are reluctant to apply general principles of law or to rely on Dworkinian ‘policies’ in deciding hard cases. The analysis links these weak institutional effects to the role of constitutional courts, case overload and educational legacies. (shrink)