Levin Güver

According to the mentalist theory of moral cognition, our moral judgements spring from innate, generative principles that are shared by all human beings. Drawing on an analogy to Chomsky’s universal grammar thesis, the mentalist theory seeks to explain how humans come to be the moral beings they are. In this paper, I provide a comprehensive and systematic overview of the theory’s moving parts. In a first step, I offer a detailed exposition of the structure of our moral reasoning, and appraise the different stages that lead up to the formation of a moral judgement. These include, but are not limited to, the perception of some morally relevant action, its automatic categorisation by means of several interrelated cognitive processes, and the bringing to bear a catalogue of both abstract and concrete principles. In a second step, I explore four questions aimed at probing the theory’s contours: the relationship between mentalism and moral philosophy (i.e. whether descriptive accounts of moral cognition can inform normative theory); the connection between mentalism and law; the theory’s capacity to capture a wider range of moral judgements beyond deontic assessments; and the role of intention in determining permissibility. Throughout, I demonstrate how the mentalist theory provides powerful insights into our moral faculties, while highlighting areas that would benefit from further clarification.

The centrality of intention for criminal law is virtually undisputed. The role of motive is equally solidified, though for the converse reason: while intention is seen as the hallmark of criminal responsibility, motive is commonly held to be irrelevant. The aim of my paper is to question this received wisdom. Contrary to the existing literature, however, I do not premise my critique on normative considerations. Instead, I advance an argument in favour of motive’s relevance to criminal liability that is grounded in an action-theoretic appraisal of the very nature of motive itself. Over the course of the paper, I situate their role and function in criminal law, before proposing a novel account of how we are to best understand what motives are. My account – according to which motives are ‘focal desires’ – is not only able to unify the many guises motives take in the law but also illustrates why they are, at least sometimes, relevant to criminal liability.

The role of intention in criminal law stands in stark contrast to that of motive. While intention’s significance for criminal liability is hardly ever contested, motive’s relevance is most frequently relegated to the peripheries. This is, I believe, a mistake, and I hope to amend it by providing a novel argument in favour of motive’s relevance to criminal liability: an argument premised not on normative considerations, but on the very nature of motive itself. An agent’s motives, I will argue, are her ‘focal desires’. Desires, as I will illustrate in turn, are psychological dispositions that manifest in goal-directed behavior aimed at satisfying the object of the desire, and an agent’s focal desires are those desires whose satisfaction denotes the completion of the action-process the agent aims to undertake. The paper will conclude with a brief outlook as to the implications of these findings to criminal law.

Extant research has shown that ordinary causal judgments are sensitive to normative factors. For instance, agents who violate a norm are standardly deemed more causal than norm-conforming agents in identical situations. In this paper, we explore two competing explanations for the Norm Effect: the Responsibility View and the Bias View. According to the former, the Norm Effect arises because ordinary causal judgment is intimately intertwined with moral responsibility. According to the alternative view, the Norm Effect is the result of a blame-driven bias. In a series of five preregistered experiments (N = 2688), we present evidence that predominantly favours the Bias View. In particular, and against predictions made by the Responsibility View, we show that participants deem agents who violate nonpertinent or silly norms – norms that do not relate to the outcome at hand – as more causal, and that this effect cannot be explained in terms of plausible mediators such as the agent’s foreknowledge and desire, or the foreseeability of harm. We close with a discussion regarding the implications of these findings, in as regards the just assessment of proximate cause in the law.

A growing body of literature has revealed ordinary causal judgement to be sensitive to normative factors, such that a norm-violating agent is regarded more causal than their non-norm-violating counterpart. In this paper, we explore two competing explanations for this phenomenon: the Responsibility View and the Bias View. The Bias View, but not the Responsibility View, predicts features peripheral to the agent’s responsibility to impact causal attributions. In a series of three preregistered experiments (N = 1162), we present new evidence that the Norm Effect arises from such peripheral features, namely from nonpertinent or entirely silly norm violations. Furthermore, we show that this effect cannot be explained by recourse to the agent’s foreknowledge or desire of the outcome, nor by its foreseeability: the Norm Effect arises even when participants judge the norm-violating agent’s doing as equally foreseeable. This, we argue, provides evidence in favour of the Bias View.

Rapid technological advancements such as fMRI have led to the rise of neuroscientific discoveries. Coupled with findings from cognitive psychology, they are claiming to have solved the millennia-old puzzle of moral cognition. If true, our societal structures – and with that the criminal law – would be gravely impacted. This thesis concerns itself with four distinct theories stemming from the disciplines above as to what mechanisms constitute moral judgement: the Stage Model by KOHLBERG, the Universal Moral Grammar Theory by MIKHAIL, the Social Intuitionist Model by HAIDT, and the Dual-Process Theory by GREENE – comparing the findings of the latter to the consequentialist and retributivist theories of punishment present in the American Criminal Law Doctrine. Analysing both a direct (link to deontology) and indirect (link to incompatibilism) approach to discrediting retributivism, I come to the conclusion that while science can have an impact on our morals and thus on the law, the current state of neuroscientific findings are not capable of shattering foundational notions of the criminal law.

In many spheres, the law takes the legal concept of causation to correspond to the folk concept (the correspondence assumption). Courts, including the US Supreme Court, tend to insist on the "common understanding" and that which is "natural to say" (Burrage v. United States) when it comes to expressions relating to causation, and frequently refuse to clarify the expression to juries. As recent work in psychology and experimental philosophy has uncovered, lay attributions of causation are susceptible to a great number of unexpected factors, some of which seem rather peripheral to causation. One of those is the norm effect (Knobe & Fraser, 2008): Agents who, in acting as they do, break a salient norm, are more likely to be considered as having caused a certain consequence than when they do not violate a norm. According to some (e.g., Alicke, 1992) this constitutes a bias. According to others (e.g., Sytsma, 2020), the folk concept of causation is sensitive to normative factors, and there’s nothing wrong with that. In this paper, we explore the question whether the norm effect should be considered a bias from the legal perspective on the one hand, and from the psychological perspective on the other. To do this, we test whether norms which are nonpertinent to the consequences or outright silly also impact causation judgements. The data from two preregistered experiments (total N=593) clearly show they do. This, we argue, makes the bias interpretation plausible from the psychological perspective, and both plausible and problematic from the legal perspective. It also shows that the law should abstain from unreflectively assuming conceptual correspondence between legal and ordinary language concepts.