In a 2008 study, Cushman found part of the reason why: Different factors matter to us when we’re judging, on the one hand, an act as permissible or not and when we’re deciding, on the other hand, what’s a suitable punishment and whether anyone is to blame. Moral judgements, he writes, are “overwhelmingly determined” by our understanding of what someone was thinking, whether their mental state was “culpable”; but our thoughts on punishment and blame have more to do with “causal responsibility,” or how someone’s actions led to some consequence, regardless of what they were thinking. These two distinct processes actually compete to determine our moral judgement, Cushman concludes: “The assignment of causal blame competitively blocks the assignment of mental culpability, while the silencing of the causal assessment allows the mental-state assessment to dominate.”
We also often take people’s actions as a reliable proxy of their mental states. In a 2015 paper, Neil Levy, Deputy Director of the Oxford Centre for Neuroethics, writes, “Because there is a sufficiently high correlation between causing and intending harm in a range of circumstances, we are disposed to take the causation of harm as a sufficient condition for some blame in those circumstances.” The problem here, he explains, is that the proxy may be misleading. Cushman says it resulted in unreasonable legal codes: “Legal codes tend to start focusing just on outcomes. There are instances where our laws reflect that more primitive response.” Hammurabi, the king of the city-state Babylon, for example, put forward lex talionis, an “eye for an eye.” But over time, Cushman says, legal codes “acquire a greater and greater focus on intent.” [...]
In one of their experiments, the researchers provided subjects different information explaining why Robert Alton Harris killed two teenage boys in 1978. One group received a historicist narrative describing a troubled and abused past, while another received fabricated information that Harris was born with a brain defect. (They told another group, the control, only that Harris killed the boys.) The researchers found that subjects who heard a historicist narrative assigned the least amount of blame because the narrative, the researchers argue, reduced subjects’ impression of how much control Harris had over his “self-formation.”
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