Blame, Praise and the Structure of Legal Rules

I'm new to this blog.  I teach at Brooklyn Law School, where I'm director of our Center for the Study of Law, Language, and Cognition. www.brooklaw.edu/centers/cognition.   Last fall, we had a conference called, "Is Morality Universal and Should the Law Care?"  Papers will be published in the Brooklyn Law Review, and I will announce it when the volume comes out.  Among the other contributors to the volume are Joshua Knobe, Adam Kolber, Ray Jackendoff John Mikhail and Bailey Kuklin. 

For now, I would like to post a draft of my contribution to the conference.  Its argument is that the asymmetry between the attribution of intent for positive and negative side effects is the result of different baseline assumptions that we have for the states of mind that accompany good and bad outcomes.  Knobe may well be right that there is a moral dimension to the asymmetry, but that is  because there is no single baseline half way between good and bad.  Rather, we expect people to want the good outcomes they produce and to produce bad outcomes by mistake - not on purpose.  We attribute intent in relation to these baselines.  There are some interesting legal ramifications, especially in the law of torts, which regards known side effects as intentional acts.  

Comments are welcome either by email or by posting them. You can download the paper here:

Download Blame, Praise and the Structure of Legal Rules

Larry Solan

Comments

[Joshua Knobe]

Larry,

This is a very interesting paper -- with lots of helpful suggestions both about cognition and about the law -- but there is one particular aspect of your hypothesis I wanted to ask you about.

You introduce a framework according to which people determine whether or not a given agent acted intentionally by comparing that agent's mental state to a kind of 'baseline.' This strikes me as exactly the right way to go here.

But then you suggest that our tendency to assess the agent by comparing his or her mental states to a baseline is purely pragmatic, hence not a reflection of people's underlying concepts.

I wanted to ask why we should regard the phenomenon as pragmatic in this way. To take an analogous case, we might determine whether an agent counts as 'tall' by comparing that agent's height to some kind of contextually-specified baseline. But we presumably would not take this to be purely a matter of Gricean pragmatics; it appears instead to be a fundamental truth about the semantics of 'tall.' Why not just say precisely the same thing about 'intentionally'?

[Lawrence Solan]

Right. Pragmatic consdierations play a more limited role in my analysis than you comment suggests, I believe. They serve as a diagnostic through which we can discover baselines. It sounds redundant to say that Joshua intentionally posted an interesting comment, because we already assume that you posted your interesting comment intentionally, so there's no need to mention it. Thus, I am using pragmatics as a reverse-engineering tool to discover the baselines that do form a significant part of my analysis. The comparison of the states of mind in your scenarios to the basines, however, is not a matter of pragmatics, so I'm not sure that we are in disagreement.

[Jonathan Piedra A]

Dear Larry: I'm from Costa Rica and wanted to ask your permission to translate the text to Spanish, to publish a student magazine specialized in law (or in a journal of philosophy) in future editions

I await your response and I appreciate your help.

Greetings.
Jonathan Piedra A.
Law Student
Universidad de Costa Rica