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Perplexed--once more--by "emotions in criminal law," Part 3: Motivated reasoning & the evaluative conception

Okay, here's part 3 of the n-part series on my continuing perplexity over  the criminal law's understanding of emotions.

I started off with the fundamental question: what's really going on?

This is what one asks when one has to swim through the current of dissonant idioms on emotions that flow through judicial opinions:  of “highly respected” men of “good moral character,” possessing “ high conceptions of the sanctity of the home and the virtue of women,” in whom the “shock” of spousal infidelity would thus naturally trigger “temporary insanity” and a resulting “loss of control” over their “mental processes”; versus the “rounders and libertines,” whose own lack of virtue would surely inure them to the same “mind-unbalancing” effect of discovering immorality on the part of others.

It's also what one asks when one encounters the sort of selectivity courts display toward impassioned offenders: excusing the "true man" who resorts to lethal violence to protect the "sacredness of his person" rather than beat a cowardly retreat when "wrongfully assailed" in a place he has "every right to be" -- b/c after all, who thinks "rationally in the presence of an uplifted knife"?—while condemning the chronically battered woman who shoots her sleeping husband, because she was motivated not by the "primal impulse" of "self-preservation" but only by her perception that the alternative was a "life of the worst kind of torture and . . . degradation . . . ."


In the last part I offered an explanation, one advanced in a 1996 article I wrote w/ Martha Nussbaum, that I called the "two conceptions thesis" or TCT.

TCT identifies two positions on what emotions are and why they matter: the "mechanistic conception," which treats emotions as unreasoning forces or impulses that acquit an actor of moral responsibility in whole or in part because of their destructive effect on volition; and the "evaluative" conception, which sees actors' emotions as moral evaluations that can in turn can be evaluated in light of social norms that define who is entitled to what.

From voluntary manslaughter to duress, from self-defense to insanity--doctrines of criminal law all appear on casual inspection to reflect the "mechanistic conception."

But on reflection their legal elements create space for and thus demand the exercise of moral judgment, which decisionmakers inevitably exercise in the manner the evaluative conception envisions—by measuring the quality of the impassioned actor’s character, as revealed by his or her anger or fear or disgust.

That’s the account that in the 2011 essay “Two conceptions of two conceptions of emotion” I declared  I no longer found satisfactory.  The source of my doubts about it was the work I had done in the intervening time, mainly in collaboration with others, on cultural cognition, which to me suggested an alternative and likely more compelling answer to the “what is going on question”: not  conscious moral evaluation of the evaluations embodied in impassioned actors’ emotional motivations but rather the unconscious subversion of a genuine commitment to the normative theory (however cogent) that informs the rival mechanistic conception of emotion.

Below I reproduce form the 2011 essay the explanation for this shift in my understanding.

“Tomorrow” I’ll tell you why I now no longer have confidence in that view either. 

Because that’s what this whole series is about: repeatedly changing one’s mind. I don't think there's anything wrong with that; on the contrary, I thnk something is wrong when this doesn't to someone who is doing what one is supposed to as an empiricist: using valid methods of observation, measurement and inference to incrementally enlarge the stock of evidence available to adjudicate between competing plausible explanations for a matter of genuine complexity....


So what’s wrong with TCT? Despite its considerable explanatory power, TCT still leaves one obvious mystery unresolved: why is the mechanistic conception so conspicuous in the law? If it is merely a veneer, why are the decisionmakers covering things up? Why don’t they just say, in unmistakably clear terms, that they are evaluating the moral evaluations that that offenders’ (and sometimes’ victims') emotions embody?

My answer is that they aren’t covering up anything. I see this response as not so much an alternative to TCT, however, as an alternative to the version I have just described. I will call this alternative the cognitive conception of TCT (or C-TCT) and distinguish it from the standard one, which I will call the moral evaluation conception (ME-TCT).

To sharpen the relevant distinctions, consider three models of the role of emotions in criminal law (Figure 1). The first contemplates that decisionmakers’ perceptions of the impact of offenders’ emotions should (and does when decisionmakers aren’t being dishonest) determine outcomes wholly independent of any moral evaluations of the quality of those emotions. This the naïve mechanistic view that TCT seeks to discredit and that it aggressively critiques when articulated by conservative opponents of reforming traditional doctrines. In its place, ME-TCT asserts that outcomes in fact flow from decisionmakers’ evaluations of the moral quality of emotions independently of their perceptions of the impact of emotions on offenders’ volition. This is what I’m calling ME-TCT. C-TCT, in contrast, accepts that decisionmakers are honestly (at least in most cases) reaching outcomes based on their view of the volitional impact of emotions. However, in assessing the intensity of emotions, they are unconsciously conforming what they see—actually, their perception of something that they can’t literally see—to outcomes that reflect culturally congenial social meanings.

One reason that I find C-TCT more compelling than ME-TCT is that I can’t bring myself to take seriously any understanding of TCT that implies decisionmakers are being systematically disingenuous when they appeal to the mechanistic conception of emotion to explain their legal determinations. The idea that they might be secretly invoking it en masse in order to conceal their commitments to politically contestable evaluative norms is preposterous; there’s no way the ever-expanding number of insiders could maintain—or even be expected uniformly to want to maintain—such a conspiracy! The idea that they are being openly disingenuous—that they are winking and grinning as they turn loose the cuckold, the homophobe, or the battered woman—also doesn’t ring true. People just aren’t that cynical; on the contrary, anyone who has taught substantive criminal law to thoughtful people will see that they are as intensely earnest as they are divided about the mental lives of cuckolds, battered women, beleaguered subway car commuters, and all the others, a point that Mark Kelman has brilliantly explored.

Even more important, though, I find myself compelled to accept C-TCT by what I’ve learned about the phenomenon of motivated reasoning during the years since I co-authored Two Conceptions of Emotion in Criminal Law. Motivated reasoning refers to a complex of unconscious cognitive processes that converge to promote formation of factual beliefs that suit some end or need extrinsic to the actual truth of those beliefs. One such end is the stake individuals have in protecting their association with and status within groups united by their commitment to shared understandings of the best life and the ideal society.

In the course of an ongoing research project that I have had the good fortune to be a part of, my collaborators and I have studied on how this dynamic shapes perceptions of risk. People unconsciously search out and selectively credit information that supports beliefs that predominate in their cultural affinity groups; they turn to those who share their values, and whom they therefore trust, to certify what sorts of empirical claims they should believe; they even construe their first-hand experiences, including what they see and hear, to fit expectations that cohere with their defining group commitments. As a result, even when they agree on ends—safe streets, a clean environment, a prosperous economy—they end up culturally divided on the means of how to secure them.

Our research group has recently begun to use these methods to explain disagreement about legally consequential facts. We’ve found, for example, that people of diverse cultural outlooks form systematically different impressions when they view videotape evidence bearing on the degree of risk associated with a high-speed police car chase or on the intent of political demonstrators to intimidate passersby.

Much like the work I did earlier on emotions in criminal law, moreover, this work is part of a multi-faceted and dynamic scholarly conversation. Our work on cultural cognition and law builds on that of social psychologists such as Mark Alicke. More recently, too, other scholars, including Janice Nadler, and John Darley and Avani Sood have completed important studies supporting the likely impact of motivated reasoning on perceptions of legally consequential facts.

C-TCT flows naturally out of this work. The most plausible reason that the mechanistic conception is so conspicuous in the criminal law, on this view, is that ordinary people, including the ones who become judges, juries, and legislators, believe it. They believe (not without reason, including personal experience!) that volition-constraining affect is a signature element of emotion; they also accept that the intensity of such affective responses should have moral consequence akin to what doctrines informed by the mechanistic view seem to say they should. But in assessing one or another form of evidence that bears on offenders’ emotions, culturally diverse individuals unconsciously gravitate toward perceptions that connect them to and otherwise are congenial to persons who share their defining commitments.

There are two studies, in particular, that are supportive of this conclusion. One is a study that Donald Braman and I did, in which we found that mock jurors of opposing cultural outlooks formed opposing pro-defendant or pro-prosecution fact perceptions in a self-defense case involving a battered woman who killed her sleeping husband—and then flipped positions in one involving a beleaguered subway commuter who killed an African-American panhandler. Another study, by Nadler, found that extrinsic facts bearing on the moral quality of parties’ characters, influenced mock jurors’ perceptions of various facts, including intent and causation.

I certainly would not say that the verdict is in on the relative strength of C-TCT and SE-TCT. But I’m convinced the case can and should be decided by empirical proof, and that the weight of the evidence to date supports C-TCT.

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Reader Comments (5)

"The most plausible reason that the mechanistic conception is so conspicuous in the criminal law, on this view, is that ordinary people, including the ones who become judges, juries, and legislators, believe it."

I think most people who work in the justice system would make a distinction between justice and law.

Moral principles are an instinctive system in humans, like language, that enables people to live closely together in cooperative, social societies. Morals and languages evolve through the joint interactions between people - language to enable people to understand one another's desires and intentions, morals to negotiate boundaries of behaviour, where competing interests conflict. And unlike the social insects, human communication is adaptive - while it is instinctive to have a moral system and a language system, the details of its vocabulary are highly variable between societies and ever-evolving. You learn both language and morals through the constant interaction with your neighbours - you have to stay within certain commonly agreed bounds if you are to communicate, and not be misunderstood. But you can vary a little within those bounds - different people have different accents, different metaphors and jargon and expressions, and a tendency towards different usages. The young use a different language to the old - with a range of slang neologisms, and they use a different moral language too. So just as English has changed radically since the time of Chaucer, so too has English morality drifted.

Society depends on having a common moral language to be able to mediate disputes, but in fact there is no singular, precisely definable morality; everybody's differs slightly. The courts tend to get involved in these moral grey areas more commonly than most, and often where the stakes are highest, and these differences pose a problem. What is just to one person is unjust to another, and there is no absolute standard to appeal to. To avoid the problems of one faction arbitrarily imposing its viewpoint on litigants, the justice system has attempted to codify the instinctive moral system into a consistent, objectively defined one. Legislators codify the rules, under the political guidance of the people, and the judiciary simply apply it. This gives us a collective say in the moral rules, rather than being at the mercy and whim of whatever the judge and jury's rules happen to be. People are less resentful if there are impersonal, impartial and objective rules, that they could in principle have known of in advance, rather than the arbitrary caprice of people to be decided after the fact.

Thus, any judge or jury will sometimes be required to rule based on the law as it is written, despite them personally feeling it to be an injustice. At the same time, judges are expected to serve the interests of justice first, and if applying the strict letter of the law would result in a clear injustice because of an issue the legislators didn't consider or take into account, then the judges are expected to apply a bit of common sense.

In the justice system there is a constant tension between justice and law, with judges expected to steer a wiser course between the two. There is no conspiracy of silence around it - the need for moral judgement in ambiguous or difficult cases is often discussed in the context of the justice system.

But when the clear letter of the law conflicts too strongly with what people consider to be natural justice, there is naturally a temptation to bend things a little bit further. Because they can't say "We're going to ignore the law as written because we think it is morally wrong", they instead develop mechanistic interpretations of the rules to fit the conclusion they want to draw. They may indeed be persuaded that this is what the legislators intended - if you have faith that the law is moral, and you know this outcome is moral, then it must necessarily be that the law when properly interpreted dictates this outcome. That's logic.

And if the law isn't moral, then is it moral to enforce it?

I have no doubt that there is a subconscious element to it - that people interpret rules and observations in a way to fit their preexisting image of the world - but I think it may be a bit more conscious than you suppose. You have to maintain the formal fiction that the application of law is impartial, impersonal, and objective, or the boundaries of society break down, but at the same time everybody knows that sometimes it is morally necessary to break the rules when the rules are wrong. It is an essential safeguard against the tyranny of law.

Ere he shall lose an eye for such a trifle, Or have a hair diminish'd, we will lose Our heads; what, hoodwink men like sullen hawks For doing deeds of nature! I'm ashamed. The law is such an ass.

August 9, 2015 | Unregistered CommenterNiV


So is that what you thjink was going on in the pair of cases that I used to set up the "what's going on" question? The judges are winking as they speak the words, in your picture of them?

I'm sure that happens.

Buit in the picture that I'm obsessed with, I can't imagine that's what this is about. In my picture, there is both too little & too much drama to fit your view.

Too little, in the sense that often these things just seem "obvious" to those involved -- *of course* this is the sort of case contemplated by the law...

Too much b/c at other times there is conflict; one group purports to see the "irresistible impulse" and other not... Neither side thinks it is joking; both suspect the other of bad faith. And the identities of who sees what & when hardly seems random...

August 13, 2015 | Registered CommenterDan Kahan

" The judges are winking as they speak the words, in your picture of them?"

I think "winking" gives the wrong impression - as if it was not a serious matter.

I think that judges do take seriously their role in mitigating unjustly literal interpretation of laws. It's not a breach of their responsibility - it's how the system is supposed to work. It's a deliberate element of the design. It's why we still insist on jury trials, as well, even though lawyers and judges are usually better qualified and better able to decide whether a law has been broken or not.

The point is that the law has as much to do with justice as a grammar handbook and style guide has to do with the way people talk. The written codification can only be an approximation to the organic reality, and the true aim of the justice system is justice, not law. Judges know this.

People seeing the "irresistible impulse" are identifying the instinct for justice as a singular entity. The same impulse that forces a person to behave with morality with regard to their own behaviour also forces them to impose the just penalty for immorality on others. People with a weak "justice instinct" may be expected to treat both with an equal degree of laxity. That instinct for justice is something society wants to encourage (up to a point) and certainly not discourage. So they recognise that the payment for obeying society's rules is a degree of tolerance about your response to rule-breaking perpetrated against you. It would seem to many people to compound the crime if they were to punish the victim for lashing out.

However, the law as such does not recognise this principle - largely because it would be too easy to abuse. People with a more 'relaxed grip' on morality would not be above manipulating it in their own defence. The legislators therefore leave it to the justice system to apply common sense leniency where required, but don't make it official. They do, however, build in explicit exceptions in clearer-cut cases where people do things without conscious volition or meaningful self-control. People sleep-walking, or mentally ill, or on medication get an exception made - the idea being that these can be objectively tested more easily and so can be made a matter of law.

And to serve the same principle of justice for which these exceptions are made, the justice system makes use of these exceptions to cover the unofficial punishment that strongly moral people are sometimes moved to apply without the official sanction of law.

I suspect that if you made the argument, that they'd likely see that the 'diminished responsibility' exception was more likely to apply to those with less self-discipline and self-control. Criminality is more akin to mental illness than moral retribution is. But morally it would feel like jailing a rape-victim for having assaulted her rapist by fighting back, and making her pay compensation for his injuries. Objectively, it's him that has the poorer moral self-control, but we argue that her response is understandable and natural, and not contrary to justice, and so not culpable.

Taken literally, the law makes no distinction between the criminals and the vigilantes - and I'm sure the judges are smart enough to know that. But they're also smart enough to know what society really wants from them - literal instructions notwithstanding. And smart enough not to admit officially that there's any difference.


Of course, I'm observing the US justice system from a considerable distance, and assuming the media portrayal is at least loosely based on reality. Other sources suggest that it's a lot more peculiar in reality than this, and has a lot less to do with 'justice' than with politics and procedural corruption. We have stories hitting the news about one person threatened with thirty five years in solitary confinement for possessing an unauthorized copy of Cosmopolitan magazine, and some out-of-date toothpaste. Another who committed suicide when faced with the prospect of a 50 year jail term for violating academic copyright. And of course all the stories about people getting shot by the police for resisting arrest - something that I'm not convinced should carry the death penalty, even in America.

And the US is famous for allowing "lawfare" in which even innocent people can be brought to bankruptcy by the astronomical costs of defending themselves against spurious suits in court, to the point where a lot of innocents plead guilty or settle up out of court just to keep the costs down. This may be because it's more likely to get reported on in America than other countries, but I'd say the American justice system does not have a particularly clean reputation internationally. (The British justice system seems to be better, but does have its own problems - particularly with regard to the secretive 'family' courts.)

Thus, I might be making an enormous error in assuming that people are acting rationally and in the interests of justice in the cases you note. Such considerations evidently don't stop them elsewhere. I think the best I can say is that the facts you report can at least be interpreted that way.

The government is run by people, who are only human. They're mostly people who are as honest and well-meaning as the average guy, doing their best with what they've got, but there's a reason why a wise society tries to limit the power one human may have over another, even in the cause of justice. It is an imperfect enterprise.

August 15, 2015 | Unregistered CommenterNiV

Is there a part 4 yet? I'm awaiting this part: "'Tomorrow' I’ll tell you why I now no longer have confidence in that view either." I'm figuring this is about how the findings in Ideology or Situation Sense may be cause for questioning the cognitive conception... This seems to relate to something I wondered about too, and thought it might be an interesting topic for further judges testing: I wonder whether the results in Ideology or Situation Sense (judges displaying less motivated reasoning) are different for when judges evaluate 'questions of law' as opposed to 'questions of fact': We asked them to evaluate an a priori law question--e.g., the meaning of the term litter. We manipulated the factual setting in which that term was being applied, but we didn't ask them to or draw inferences from factual evidence----testimony, scientific studies, video, etc. I wonder whether we'd see more motivated reasoning among judges if they were asked to draw inferences from evidence that is central to the outcome of a proceeding (e.g., does a particular scientific study prove that a species is endangered? does particular testimony in a criminal case prove a person acted in the heat of the moment?). In Ideology or Situation Sense, to explain why judges displayed motivated reasoning about climate change, etc., but not on the legal questions, we distinguished between their non-professional and professional domains or capacities. But perhaps the distinction is between factual questions and more a priori, legal questions--such as the meaning of language. In other words, I wonder whether judges would display the same degree of motivated reasoning that we saw w/r/t climate change if asked to draw inferences about that evidence in their professional capacity, as part of a case they were adjudicating.

Curious to see your next installment of this one!


August 28, 2015 | Unregistered CommenterDanieli


You'll have to wait till "tomorrow."

Or do what you just did, which is write Part 4 yourself! This is what you want to test, but I think the same judges who did ISS decided the Oklahoma irresistible impulse decisions; crafted the "true man" self-defense doctrine; see "choice" in Norman & Hendrickson ...

August 28, 2015 | Registered CommenterDan Kahan

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