Levin Güver

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.

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.

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.

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.