CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, March 11, 2014

Mikhail on Harmful Battery and Moral Cognition

Mikhail johnJohn Mikhail (Georgetown University Law Center) has posted Any Animal Whatever? Harmful Battery and its Elements as Building Blocks of Moral Cognition (Ethics, Vol. 124, 2014) on SSRN. Here is the abstract:

The main questions for future research in the dynamic field of moral psychology include how the mind computes representations of battery, murder, negligence, and other harmful trespasses and how these computations and the negative emotions they elicit are related to the complex cognitive and socio-emotional capacities that humans share with other animals. In this paper, I draw upon cognitive science and legal theory to examine the simplest part of the first question: how the mind computes representations of harmful battery. The paper contends that the key elements of the prima facie case of harmful battery appear to form critical building blocks of moral cognition in both humans and nonhuman animals. By contrast, the rules and representations presupposed by familiar justifications or affirmative defenses to harmful battery appear to be uniquely human. The paper also argues that many famous thought experiments in ethics and many influential experiments in neuroscience and moral psychology rely on harmful battery scenarios without acknowledging this fact or considering its theoretical or empirical implications. The unifying factor in all of these studies appears to be goal-directed harmful contact, inflicted without consent or justification. 

Part I outlines the main elements of the prima facie case of harmful battery, including voluntary act, harmful or offensive intent, and harmful contact, as they are generally conceived by the common law of torts. Unlike a typical legal commentary, however, these elements are examined here with an eye toward what they might reveal to us about the rich internal structure of human — and perhaps also nonhuman — moral psychology. Part II adds more texture to the inquiry by considering the primary defenses to battery in both morality and law, with special emphasis on different types of consent. The guiding idea of Parts I and II is that, unlike the prima facie case of harmful battery, which implicates aspects of moral judgment that might plausibly be shared with nonhuman animals, the mental operations presupposed by these affirmative defenses point us toward elements of moral cognition that may be distinctively human. In Part III, I examine eight prominent research endeavors in ethics and cognitive science — including influential work by Philippa Foot, James Rachels, Thomas Nagel, Christopher Boorse and Ray Sorenson, Fiery Cushman, Liane Young and Rebecca Saxe, Eliot Turiel, and Kiley Hamlin — and argue that all of these inquiries appear to rely on harmful battery scenarios without explicitly acknowledging this fact or considering what it might suggest for issues of experimental design, data interpretation, or theory construction. In Part IV, I conclude by considering how the main arguments of the paper might bear on Darwin’s idea that "any animal whatever" would acquire a moral sense or conscience under the right circumstances.

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