Project

Inculpating States of Minds

Goal: Theory of mind is the capacity to ascribe mental states – knowledge, beliefs, intentions – to others and ourselves. This capacity is essential for our ability to explain, predict and evaluate behaviour. Just as for moral judgment, theory of mind is of key importance for the assessment of legal responsibility.

This project aims to systematically investigate sources of pervasive bias in the ascription of inculpating states of mind and to devises strategies that help alleviate such biases.

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Marc-André Zehnder
added 2 research items
In this paper we explore whether an action’s severity of outcome (somewhat bad v. very bad) influences attributions of intentionality, knowledge and moral judgment. In between-subjects studies conducted in twelve countries from the Americas, Asia and Europe, we found a robust severity effect on all DVs (except for India). The effect arises to similar degrees for legal expert samples from four different countries (Brazil, UK, the Netherlands, Poland). Given that the severity effect is significantly reduced in within-subjects designs for both laypeople and experts in all countries, we argue that it constitutes a bias, and that this is of particular importance for mens rea assessment in legal contexts.
In legal decision-making, the outcome severity of a crime and the subject's moral character are not to be considered to ascribe inculpating mental states (mentes reae). Inconsistent with the concept of mens rea, previous research showed that professional judges are affected by the outcome severity in their ascription of intention (Kneer & Bourgeois-Gironde, 2017). Following Alicke (2000), we hypothesize that an affect-driven information processing could explain these findings. We assume that a more severe outcome (e.g., the victim being paralyzed) evokes stronger negative affect than a less severe outcome (e.g., the victim suffering some bruises). The negative affect, in turn, fosters the desire to blame the subject and the ascription of inculpating mental states. Similar processes might occur if judges or juries are confronted with information about the suspect's moral character (see, e.g., Nadelhoffer, 2006). A harm-causing suspect with a bad moral character might evoke stronger negative affect than a harm-causing suspect with a good moral character. Testing these hypotheses, we ran two studies (study A with a sample of laypeople, N=344 and study B with a sample of legal experts, N=130, including 17 judges, 24 prosecutors, and 56 attorneys). In both studies, participants read a case description with information about the suspect's moral character (good or bad) and the severity of the outcome (moderate or severe). After reading the case description, participants reported their negative affect and made an initial ascription of blame to the suspect (ex-ante). Participants then evaluated further evidence about the case before judging the suspect's mental state and giving their final judgments of blame (ex-post). In study B, we found that aggregating across the two outcome conditions, legal experts reported stronger negative affect, ascribed more blame, and were more willing to ascribe inculpating states of mind if the suspect had a bad moral character than if the suspect had a good moral character (all ps<.001; all ds> .50). For outcome severity, we only found a significant effect on negative affect (d=.42; p<.05) and blame ex-ante (d=.35; p<.05). In study A, we found similar results. 2 Interestingly, after evaluating further evidence, moral character had bigger effects on the ascription of blame (ex-post) and mens rea in the study with experts than in the study with laypeople, even though legal experts reported a smaller level of initial blame (ex-ante) and negative affect compared to laypeople. A possible explanation is that experts might suppress their negative affect and initial desire to blame, knowing that they should be objective in their judgment and not consider character information to ascribe mental states. However, with the additional cognitive load (evaluating further evidence), the capacity for suppression might diminish, and the influence of the affective-laden information becomes all the more apparent. In the end, both fact finders in civil law jurisdictions (juries of laypeople) and common law jurisdictions (judges as legal experts) ascribe mens rea inconsistently with the concept of mens rea supposedly at the foundation of criminal and tort law.
Levin Güver
added a research item
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.
Jan Garcia Olier
added a research item
Several empirical studies have documented an asymmetry in people’s assessments of intentional action, so-called ‘Knobe effect’. Accordingly, foreseen (yet undesired) outcomes that are harmful are judged intentional, whereas foreseen (yet undesired) outcomes that are helpful are judged unintentional. The Knobe-effect has been standardly conceived of in bivalent terms: The presence or absence of perceived intentionality contingent on a negative or positive outcome valence. Unsurprisingly, explanations thereof have a similar bivalent structure: Intentionality ascriptions in Knobe-effect cases are viewed as contingent on the presence or absence of a binary feature—a blameworthy agent, a norm violation, a morally bad outcome, and so on. In this paper, we report the results of two experiments exploring attributions of intentionality (and knowledge) across a range of graded outcomes: very bad, somewhat bad, neutral, somewhat good and very good. The findings suggest that the Knobe-effect data points are but two data points of a broader, more fine-grained phenomenon, and that Knobe effect explanations that have conceived of it in bivalent terms are at best incomplete.
Izabela Skoczeń
added a research item
In the present paper we argue that strict liability is contrary to the functions of criminal law and is not encompassed by criminal law. We argue on this basis that, wherever possible, the influence of moral and legal luck should be avoided in assessments of culpability. Next, we provide a descriptive assessment of several penal codes which suggests that there’s ample room for legal luck when the renunciation defense is concerned. Thereafter, we explore arguments in favor of moral and legal luck. The philosophical reasons in favor of moral luck might seem to be supported by, between subjects’, empirical results regarding outcome effects in moral luck cases. Since the entire debate is strongly driven by the intuition that lucky and unlucky agents should be treated differently in terms of culpability, we show that the plausibility of the philosophical arguments in favor of moral luck might need close assessment from the empirical perspective. Next, we consider whether, given the arguments in favor of moral and legal luck, the current shape of the renunciation defense could be upheld. We argue that it runs counter to fairness principles and is inconsistent with causation doctrines. We check in a series of experiments whether, when reflective, participants uphold the intuition that the lucky and unlucky perpetrators should be treated differently. We find that it is not the case in a within subjects design, in which participants compare the lucky and unlucky cases. Thus, we argue that there is a deep conflict between current renunciation legislation on the one hand and, on the other, the principles of justice embedded in the law and supported by folk morality.
Jan Garcia Olier
added 2 research items
In most states in the US, there is no statutory duty to rescue or warn others to prevent them from being harmed. Over time, however, courts have developed affirmative duties to rescue or warn under specific circumstances, namely (a) when there is a special relationship between the injured party (e.g. a patient) and the party who has particular responsibilities towards them (e.g. a doctor) and (b) situation where the risk of harm is both severe and foreseeable ex ante. In this paper, we report empirical data, which suggest that severity of actual outcome influences mock juror's judgments as to (i) whether a duty to warn exists, (ii) whether it was breached, and (iii) whether there is a causal relation between breach and the injury suffered by the plaintiff. This, we argue, is problematic for US law: Although in civil negligence cases, including duty to warn trials, outcome severity is a legitimate factor for the determination of damages, it should not play a role in the adjudication of duty, breach and causation (i.e. (i)-(iii) from above).
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.
Izabela Skoczeń
added a research item
John lights a long fuse in order to burn his enemy’s house. After a short while, John has second thoughts. Consequently, he tries to stamp out the fuse. There are two possible outcomes. The first outcome is lucky: John stamps out the fuse easily and the enemy survives. However, it could also be that a strong wind prevents John from stamping out the fuse. As a result, John’s enemy dies anyway. In both cases, the lucky and the unlucky one, John has the same quality of the will: he initially intends a criminal outcome, yet later, on second thoughts, desists from his criminal intent and does everything he can to prevent the criminal outcome. While his actions are intentional, the outcome is accidental as it is not fully under John’s control – it is subject to causal luck. If one believes that it is one’s quality of the will rather than an accidental outcome of an action which should determine, for instance moral and legal, responsibility, then irrespective of the outcome of John’s action, he should be held equally responsible in both cases. Moreover, if quality of the will is to be decisive for responsibility, then John is surely more culpable than someone who never even undertook lighting a fuse in order to kill an enemy. However, John is less culpable than someone who would not entertain second thoughts and would not even try to stamp out the lit fuse. This stance could be labeled internalism about responsibility and culpability, as it goes along Kantian lines of reasoning. By contrast, if one thinks that external factors, such as for instance the outcome of one’s action, should determine one’s responsibility or culpability, then John in the lucky case is less culpable or responsible than John in the unlucky case, as only in the latter the enemy dies. However, given that the outcome of John’s action is not under his control, but is subject to outcome and causal luck, an externalist, consequentialist approach to culpability and responsibility is unfair. If one looks at the general rules governing criminal intention (mens rea) ascriptions in legal systems around the globe, these rules are largely Kantian (internalist), rather than consequentialist (or externalists). After all intention is a necessary prerequisite of culpability. However, surprisingly, both common and civil law systems treat the lucky and unlucky cases differently. If John is lucky and stamps out the fuse, John commits merely an attempt (one can ‘attempt’ only if one fails to achieve the goal). Consequently, he can use the so-called renunciation defense in court. This defense consists of a mitigation of punishment due to the fact that John completely and voluntarily desisted from his criminal enterprise. By contrast, if John is unlucky and the fuse cannot be stamped out due to the harsh wind, then John is taken to be a perpetrator, he cannot resort to the renunciation defense, even though he did everything he could to stamp out the fuse and, as a result, receives the full punishment. Yet are these rules the expression of reflective, all things considered views on legal responsibility? Or rather, are they the result of a bias arising out of the fact that in real life we never see the relevant counterfactual? In other words, juries and judges see either the lucky or the unlucky John separately, they never compare the two cases. In order to test the bias hypothesis, we performed a series of experiments (total N=800). We employed a between subject and a within subjects’ experimental design. In the between subjects’ design, participants are presented with either a lucky or an unlucky renunciation case. Next, participants are asked questions about moral and legal responsibility (blame, wrongness of action and punishment), probability of the outcome occurring (subjective and objective) and mental states. We also performed the same experiment in a within subjects’ design. We found that (i) outcome influences moral and legal responsibility ascriptions; (ii) the influence of outcome is mitigated in the within subjects design as compared to the between subjects design (effect size of the difference in between subjects d = .87; versus effect in within subjects d = .35); (iii) probability mediates the relation between outcome and mental state ascriptions. Based on our results, we point toward the conclusion that the folk concept of fair and just responsibility requires that agents are held responsible only for outcomes that are under their control. Since legal rules on the renunciation defense in common and civil law systems run counter to this claim, they should be reformulated.
Markus Kneer
added 3 research items
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.
When two actors have the same mental states but one happens to harm another person (unlucky actor) and the other one does not (lucky actor), the latter elicits milder moral judgment. To understand how this outcome effect would affect post-harm interactions between victims and perpetrators, we examined how the social role from which transgressions are perceived moderates the outcome effect, and how outcome effects on moral judgments transfer to agentic and communal interpersonal goals. Three vignette experiments (N = 950) revealed similar outcome effects on moral judgment across social roles. In contrast, outcome effects on agentic and communal goals varied by social role: Victims exhibited the strongest outcome effects and perpetrators the weakest, with bystanders falling in between. Moral judgment did not mediate the effects of outcome severity on interpersonal goals. We discuss the possibility that outcome severity raises normative expectations regarding post-harm interactions that are unrelated to moral considerations. This article is protected by copyright. All rights reserved
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.
Markus Kneer
added a research item
According to Anscombe, acting intentionally entails knowledge in ac- tion. This thesis has been near-universally rejected due to a well-known counter- example by Davidson: a man intending to make ten legible carbon copies might not believe with confidence, and hence not know, that he will succeed. If he does, however, his action surely counts as intentional. Damaging as it seems, an even more powerful objection can be levelled against Anscombe: while act- ing, there is as yet no fact of the matter as to whether the agent will succeed. Since his belief that he will is not yet true while his action is in progress, he can- not possibly know that he is indeed bringing about the intended goal. Knowl- edge in action is not only unnecessary for intentional action, it seems, but–at least as regards success-bound types of action–impossible to attain in the first place. In this paper I argue that traditional strategies to counter these objections are unsatisfactory and propose a new account of knowledge in action which has two core features: (i) It invokes an externalist conception of justification which not only meets Davidson’s challenge, but also casts doubts on the tacit internalist premise on which his example relies. (ii) Drawing on recent work about by John MacFarlane, the proposed account conceives of claims to in action as assessment-sensitive so as to overcome the factivity objection. From a retrospective point of evaluation, previous claims about future events and actions can not only be deemed as having been true, but also as having been known.
Markus Kneer
added a research item
At the height of the Covid-19 pandemic, frontline medical professionals at intensive care units around the world faced gruesome decisions about how to ration life-saving medical resources. These events provided a unique lens through which to understand how the public reasons about real-world dilemmas involving trade-offs between human lives. In three studies (total N = 2298), we examined people’s moral attitudes toward triage of acute coronavirus patients, and found elevated support for utilitarian triage policies. These utilitarian tendencies did not stem from period change in moral attitudes relative to pre-pandemic levels--but rather, from the heightened realism of triage dilemmas. Participants favored utilitarian resolutions of critical care dilemmas when compared to structurally analogous, non-medical dilemmas—and such support was rooted in prosocial dispositions, including empathy and impartial beneficence. Finally, despite abundant evidence of political polarization surrounding Covid-19, moral views about critical care triage differed modestly, if at all, between liberals and conservatives. Taken together, our findings highlight people’s robust support for utilitarian measures in the face of a global public health threat, and illustrate how hypothetical scenarios in moral psychology (e.g. trolley cases) should strive for more experiential and psychological realism, otherwise their results might not generalize to real-world moral dilemmas.
Markus Kneer
added a research item
Condition essentielle de la responsabilité civile, la notion de causalité reste aujourd’hui difficile à saisir et sujette à nombreuses discussions. Les contributions présentées dans cet ouvrage abordent la question à nouveaux frais, en adoptant un point de vue résolument interdisciplinaire mêlant philosophie, droit et économie. Sont envisagées successivement des difficultés que le contentieux de la causalité met régulièrement en évidence. Ainsi, la difficile articulation entre causalité juridique et causalité scientifique conduit à s’interroger sur le rôle de la science : doit-elle guider le droit ou faut-il considérer que la causalité en droit n’est qu’un “construit” juridique dégagé de toute perspective scientifique ? Sont également évoquées les diverses tentatives de formalisation analytique de la causalité comme l’analyse contrefactuelle, le critère NESS et les définitions probabilistes de la causalité, ainsi que leur capacité à répondre aux questions redoutables suscitées par la présence de co-auteurs multiples ou d’hypothèses de “surdétermination causale”. Ces réflexions fondamentales ouvrent alors sur les autres aspects clefs de la causalité en droit et en économie comme la preuve et le rôle du raisonnement probabiliste, ou les modalités de la contribution à la dette de réparation en présence d’une pluralité de co-auteurs. Est alors mis en évidence l’apport des sciences économiques, qui permet de classer les différentes techniques d’attribution de la responsabilité et de discuter des propriétés économiques des règles de répartition de la charge de la dette de réparation. Cet ouvrage s’adresse aux chercheurs et aux praticiens confrontés aux questions délicates posées par la causalité dans le droit de la responsabilité civile.
Markus Kneer
added 4 research items
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 (total N=1980), 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.
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.
When two actors have exactly the same mental states but one happens to harm another person (unlucky actor) and the other one does not (lucky actor), the latter elicits milder moral judgment among bystanders. We hypothesized that the social role from which transgressions are perceived would moderate this outcome effect. In three preregistered experiments (N = 950), we randomly assigned participants to imagine and respond to moral scenarios as actor (i.e., perpetrator), victim, or bystander. The results revealed highly similar outcome effects on moral judgment across social roles. However, as predicted, the social role moderated the strength of the outcome effect on interpersonal goals pertaining to agency and communion. Although in agreement about the blameworthiness of lucky and unlucky actors, victims’ agency and communion were more sensitive to the outcome severity than perpetrators’ agency and communion, with bystanders’ outcome sensitivity falling in between. Outcome severity affected agency and communion directly instead of being mediated by moral judgment. We discuss the possibility that outcome severity raises normative expectations regarding interaction in a transgression’s aftermath that are unrelated to moral considerations.
Markus Kneer
added a project goal
Theory of mind is the capacity to ascribe mental states – knowledge, beliefs, intentions – to others and ourselves. This capacity is essential for our ability to explain, predict and evaluate behaviour. Just as for moral judgment, theory of mind is of key importance for the assessment of legal responsibility.
This project aims to systematically investigate sources of pervasive bias in the ascription of inculpating states of mind and to devises strategies that help alleviate such biases.