Balkinization: Kelman on Moral Grammar and Moral Heuristics

Kelman on Moral Grammar and Moral Heuristics

John Mikhail

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.

For an introduction to my ideas on moral grammar, a good place to start might be this interview with David Edmonds of Philosophy Bites, together with this paper in Trends in Cognitive Sciences, this paper in Psychology of Learning and Motivation, and this brief comment in Emotion Review. For more general and popular accounts, I would recommend this essay by Rebecca Saxe in Boston Review, this essay by Steven Pinker in The New York Times, this article by Greg Miller in Science, and this post by Sam McDougle in The Beautiful Brain. The connection between moral psychology and human rights is explored in this essay on HLA Hart and, more recently, this contribution to an important new volume on human rights edited by Ryan Goodman, Derek Jinks, and Andrew Woods. Finally, for the more ambitious, who would like to see all the pieces fitted together in one extended argument, a useful resource might be my book, Elements of Moral Cognition.

Here is Kelman’s abstract:

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]