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Mark Kelman of Stanford Law School has posted a new paper to
SSRN entitled “Moral Realism and the Heuristics Debate” (hat tip: Larry Solum).Building on the detailed study of the behavioral economics literature in his book, The Heuristics Debate,
Kelman turns his attention in this paper to some recent work in the cognitive
science of moral judgment and its implications for law and legal theory.
Kelman’s main topic is the different approaches taken by
Cass Sunstein and me to widespread moral intuitions and their relation to the
legal regulation of risks and harms.Roughly
speaking, these approaches might be thought of as debunking (Sunstein) and
vindicating (me); however, it would be a mistake to lean too heavily on these
labels or to equate either of us with extreme positions on this issue.Kelman recognizes this, and he supplies a complex,
nuanced discussion of our respective accounts of moral intuition, which goes
beyond anything previously available in the literature.He notes interesting parallels in the disagreement
between Sunstein and me and the debate between two camps of psychologists over
the nature of intuitive reasoning in other domains: the heuristics & biases
school (e.g., Kahneman & Tversky) and the “fast and frugal” school (e.g.,
Gigerenzer).Finally, he seeks to embed these
themes in the broader context of familiar paradigms in legal theory, from
Langdell and Hohfeld to Coase, Posner, and Epstein.
Kelman’s paper is formidable and full of penetrating insights.In some cases he appears
to misconstrue my own views and commitments.In any case, I will need to give his paper a close read and digest it
before responding in print.Readers interested
in learning more about these topics might wish to take a look at Sunstein’s 2005 target article in Behavioral and Brain Sciences, together with open peer commentary offered
by a range of commentators, including Matt Adler, Elizabeth Anderson, Barbara
Fried, Jonathan Haidt, Peter Singer, Philip Tetlock, and myself.
There has been substantial debate in the legal
academy centered on the questions of whether universal moral intuitions exist
and, if so, whether these intuitions have a privileged normative status, a
debate both reflecting and partly reinterpreting classical jurisprudential
debates about the existence of “natural law” and “natural rights.” There is a
strong but underappreciated homology between the debates about the nature and
quality of intuitive moral reasoning, and debates, associated with the
Heuristics and Biases (H&B) school on the one hand and the “Fast and
Frugal” (F&F) school on the other, about the nature and quality of our
capacity to make self-interested decisions (decisions requiring both factual
and a-moral evaluative judgment and decision making ability. There are those in
the legal academy, most prominently Cass Sunstein, who accept that people
indeed often have strong moral intuitions but believe these predispositions
deserve little or no normative deference because the intuitions frequently
merely reflect the use of inapt rules of thumb. Others, most prominently John
Mikhail, believe people readily make non-reflective moral judgments that we
cannot readily explain or justify logically that are grounded in our capacity
to process a quite small number of critical features of a decision situation in
precisely the way that F&F theorists believe we make most judgments. I
explore the degree to which some of the virtues, and, more importantly, most of
the problems, in both Sunstein's and Mikhail’s work are the features and
shortcomings that have bedeviled the work of each of the schools on heuristic
reasoning. Posted
11:18 AM
by John Mikhail [link]