Moral Grammar and Intuitive Jurisprudence

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Moral Grammar and Intuitive Jurisprudence: A Formal Model of Unconscious Moral and Legal Knowledge

John Mikhail
Georgetown University - Law Center


July 20, 2008

THE PSYCHOLOGY OF LEARNING AND MOTIVATION: MORAL COGNITION AND DECISION MAKING, D. Medin, L. Skitka, C. W. Bauman, D. Bartels, eds., Vol. 50, Academic Press, 2009
Georgetown Public Law Research Paper No. 1163422


Abstract:
Could a computer be programmed to make moral judgments about cases of intentional harm and unreasonable risk that match those judgments people already make intuitively? If the human moral sense is an unconscious computational mechanism of some sort, as many cognitive scientists have suggested, then the answer should be yes. So too if the search for reflective equilibrium is a sound enterprise, since achieving this state of affairs requires demarcating a set of considered judgments, stating them as explanandum sentences, and formulating a set of algorithms from which they can be derived. The same is true for theories that emphasize the role of emotions or heuristics in moral cognition, since they ultimately depend on intuitive appraisals of the stimulus that accomplish essentially the same tasks. Drawing on deontic logic, action theory, moral philosophy, and the common law of tort, particularly Terry's five-variable calculus of risk, I outline a formal model of moral grammar and intuitive jurisprudence along the foregoing lines, which defines the abstract properties of the relevant mapping and demonstrates their descriptive adequacy with respect to a range of common moral intuitions, which experimental studies have suggested may be universal or nearly so. Framing effects, protected values, and implications for the neuroscience of moral intuition are also discussed.

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Moral Intuitions and Organizational Culture

Milton C. Regan, Jr.
Georgetown University Law Center



St. Louis University Law Journal, Vol. 51, p. 941, 2007
Georgetown Law and Economics Research Paper No. 1130858
Georgetown Public Law Research Paper No. 1130858


Abstract:
Many efforts to understand and respond to a succession of corporate scandals over the last few years have underscored the importance of organizational culture in shaping the behavior of individuals. This focus reflects appreciation that even if an organization has adopted elaborate rules and policies designed to ensure legal compliance and ethical behavior, those pronouncements will be ineffective if other norms and incentives promote contrary conduct.

Responding to the call for creating and sustaining an ethical culture in organizations requires appreciating the subtle ways in which various characteristics of an organization may work in tandem or at cross-purposes in shaping behavior. The idea is to identify the influences likely to be most important, analyze how people are apt to respond to them, and revise them if necessary so that they create the right kinds of incentives when individuals are deciding how to act.

This can be a tall order even if we assume that most behavior is the result of a deliberative process that weighs multiple risks and rewards. It's even more daunting if we accept the notion that conscious deliberation typically plays but a minor role in shaping behavior. A focus on what two scholars describe as "the unbearable automaticity of being" posits that most of a person's everyday life is determined not by conscious intentions and deliberate choices but by mental processes outside of conscious awareness.

In this article, I discuss a particular strand of research that is rooted in the study of non-conscious mental processes, and consider its implications for ethics and culture in the organizational setting. This is work on the process that we use to identify and respond to situations that raise what we think of as distinctly moral questions. A growing body of research suggests that a large portion of this process involves automatic non-conscious cognitive and emotional reactions rather than conscious deliberation. One way to think of these reactions is that they reflect reliance on moral intuitions. When such intuitions arise, we don't engage in moral reasoning in order to arrive at a conclusion. Instead, we do so in order to justify a conclusion that we've already reached. In other words, moral conclusions precede, rather than follow, moral reasoning.

If this research accurately captures much of our moral experience, what does it suggest about what's necessary to foster an ethical organizational culture? At first blush, the implications seem unsettling. The non-conscious realm is commonly associated with irrational and arbitrary impulses, and morality often is characterized as the hard-won achievement of reason over these unruly forces. If most of our moral judgments are the product of non-conscious processes, how can we hope to understand, much less influence, our moral responses? Are moral reactions fundamentally inscrutable and beyond appeals to reason? If reason has no persuasive force, does appreciation of the non-conscious source of our moral judgments suggest that any effort to promote ethical conduct must rest on a crude behaviorism that manipulates penalties and rewards?

I believe that acknowledging the prominent role of non-conscious processes in shaping moral responses need not inevitably lead either to ism or Skinnerian behaviorism. Research has begun to shed light on how these processes operate. Related work has suggested how our moral responses may be rooted in human evolution. This perspective focuses on the ways in which our capacity for moral judgment is embedded in physical and mental processes that have provided an adaptive advantage in human evolution. These bodies of research contribute to a richer portrait of human cognition and behavior that can be valuable in thinking about how to promote ethical awareness and conduct.

As Owen Flanagan has put it, "seeing clearly the kinds of persons we are is a necessary condition for any productive ethical reflection." If there were such a thing as a normative theory of human movement, it would be futile if it exhorted us to fly. Efforts to create an organizational culture that encouraged people to fly would be doomed as well. In thinking about ethics, we need to have a sense of what lies between simply accommodating what we tend to do and demanding that we fly. My hope is that this article takes a small step in that direction.
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