Blame, Praise, and the Structure of Legal Rules
Lawrence M. Solan
Brooklyn Law School
August, 25 2009
Brooklyn Law Review, Vol. 75, 2009
Brooklyn Law School, Legal Studies Paper No. 158
This essay discusses the implications of some important work in experimental philosophy to criminal law and tort law. Joshua Knobe and others have demonstrated experimentally that we attribute intent more to those whose actions lead to bad results than to those whose actions lead to good results. In one version, a middle-management executive boasts that his new process will not only make money for the company, but help the environment. His boss approves the new venture, but makes it clear that he doesn’t care about helping the environment, he’s doing it for the money. Sure enough, the new process does help the environment. Yet we do not give the boss credit for intentionally having made the environment cleaner. In contrast, when the mid-level manager laments that the new process will make money at the expense of damaging the environment, we attribute blame to a boss who orders the process to go forward notwithstanding the negative side-effect. In this essay, I argue that the asymmetry results from the fact that we all have intuitive baselines of intent. We generally expect that people will act within social norms to accomplish socially-useful goals, and when they cause harm, they do so accidentally. Since the boss acted below the baseline when there was a good outcome, we are unlikely to attribute intent. In contrast, when harm ensued, his state of mind was worse than the baseline, which makes the attribution of intent more natural. Two significant legal ramifications are discussed. First, the fact that we set a high baseline for acceptable conduct suggests that legal systems are more likely to be organized around expecting the good and punishing the bad, notwithstanding the fact that economists argue persuasively that the two are equivalent in many situations. Second, the finding that people regard a known, negative side-effect of an act as intentional in its own right is embedded as a principle in tort law, and is represented in Section 8A of the Restatement (Second) of Torts. This section has brought controversy in light of courts drawing different lines as to how much knowledge is sufficient to trigger the provision. The essay discusses the relationship between this controversy and the moral intuitions of the subjects in the experimental philosophy studies.
Number of Pages in PDF File: 34
Keywords: blame, praise, intent, tortAccepted Paper Series
Date posted: August 26, 2009
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