Thursday, July 24, 2008
Posted by Jeff Lipshaw
For the two or three of you out there who actually read my posts on issues relating to law, ethics, business, and moral theory, or the far greater number who'd like to read something good, let me recommend two very different, but thematically related, pieces.
First, John Mikhail's (Georgetown, left) recent SSRN post, a draft of Moral Grammar and Intuitive Jurisprudence: A Formal Model of Unconscious Moral and Legal Knowledge (THE PSYCHOLOGY OF LEARNING AND MOTIVATION: MORAL COGNITION AND DECISION MAKING, D. Medin, L. Skitka, C. W. Bauman, D. Bartels, eds., Vol. 50, Academic Press, 2009) (HT, as usual, Larry Solum). Professor Mikhail does both empirical and theoretical work with what is known as the Trolley Problem: how people react to variants of a basic hypothetical in which a runaway trolley will kill either six people or one person depending on which track it follows, and the moral agent has to decide whether or how to throw a switch. The empirical side is that he and his colleagues have interviewed thousands of people all over the world; the theoretical side is the conclusion that there is indeed a hardwired and universal moral sense. This book chapter proposes a model for how the intuitional process is working.
I've recently pondered (and posted about the pondering) in Law's Illusion: Scientific Jurisprudence and the Struggle with Judgment. I had already footnoted Professor Mikhail's earlier work as among the most promising of the descriptive enterprises on moral intuition; after looking at this new piece, I added the following:
John Mikhail’s work is on the cutting edge in terms of integrating moral philosopy and cognitive science. Several observations about it are appropriate here. First, Mikhail and his colleagues conclude that extensive empirical work bears out the hypothesis “that most individuals would be unaware of the operative principles generating their moral intuitions, and thus largely incapable of correctly describing their own thought processes.” This is an empirical foundation of my inquiry; Mikhail’s work appears to confirm my intuitions and casual observations over a lifetime of work. Second, while respectful of the inordinate complexity of the task of setting intuitive moral decision-making into algorithms, Mikhail suggests that “[i]n principle, a computer program could be devised that could execute these rapid, intuitive, and highly automatic operations from start to finish.” This is consistent with Douglas Hofstadter’s conclusion in his work on the issue of consciousness. Third, Mikhail’s model still does not answer the questions about recursiveness – the operation of judgment on own’s own judgment – with which Hofstadter wrestles. Finally, while Mikhail is hopeful of a reductive solution (as noted, as much a matter of faith as anything, in my view), the difference between theoretically solvable but practically unsolvable complexity, on one hand, and irreducibility, on the other, may well be meaningless for my purposes.
Second, Joseph Vining's (Michigan, right) The Resilience of Law, posted with the following abstract: "The development of "law and economics" over the last half-century has expanded and reinforced a perception among academic lawyers that law itself is a social science. During the same period social science has moved closer to the discipline of natural science and the presuppositions and methods of its thought and work. This essay explores why law is not and cannot be a social science, and why there are grounds for hope in a future for democracy grounded in the rule of law."
This is a rumination on another theme that intrigues me, the interplay of the objective and subjective, something I explored in Models and Games and the piece in the Canadian Journal of Law and Jurisprudence that should be out any day now. Vining draws on the narrative methodology, and observes:
Law will stay resilient because the individual at home in law is the bedrock, prior to any discussion of history or process, or presently existing system, or scientific conclusion, in fact prior to any discussion of "the individual." Though some individual waves his wand at us again and again, we are not changed from the individuals we are into products or statistical notions. Beyond that bedrock - our actual presence to one another - I should say there is some assurance in the fact that law, with its presuppositions and more than presupposition, its ontology, is the one thing other than food that we cannot do without. Social scientists too, even they, cannot do without it.
Law will be tough enough in the future. We can speculate why it has not been tougher in the past. There are tensions within law, as there are in your and my own thought, and there always have been. Identification of law with social science can have been an effort to escape them. Social science and science behind it perhaps need not have pressed so. They might just have offered themselves, for there is a constant pull toward the authoritarian, the meaningless, the automatic, away from responsibility, away from facing grief for what we ourselves do. Work in law even has an element of the frightening in it, which must be handled in some way. Just as there is biblical awe, dread, and fear, so too can it be positively frightening to think that what is necessary to authenticity of any kind at any level - and necessary therefore to authority, and therefore to law - runs straight up to a transcendent dimension of the universe. This is a problem the social scientist of our time, thinking as a social scientist, does not have. But the lawyer does.
As Larry Solum says, both are highly recommended. Download them while they're hot.