3.3. Introducing Six Moral Foundations That Drive Civic Decisions

• Jurisdiction: United States
• Publication year: 2021

3.3. INTRODUCING SIX MORAL FOUNDATIONS THAT DRIVE CIVIC DECISIONS

System 1 responds to stimuli intuitively. Narrative triggers its intuitive process; System 1 can make decisions if System 2 does not intervene. System 1's initial impressions can influence System 2's process, from a little to a lot. These mental operations cover the entire field of decision making, but the mission of this book is limited to the kinds of civic and political conclusions judges make.

Our search is for the core of how System 1 forms impressions and, if allowed, decides. System 1 does not pick by spinning a dial of random options. The Jacobson stories that opened the chapter showed that judges, like other people, bring different viewpoints to consuming stories. Viewpoint differentiation begins with early cognition: not all children love all so-called children's stories. Differentiation proceeds with time.

Jonathan Haidt published The Righteous Mind in the year after Kahneman published Thinking.⁴⁷ Haidt pursues moral psychology, a field that crosses over philosophy and social science, seeking objective understanding about the foundations for judgments and decisions. Haidt's approach to moral foundations theory plants its own foundation in the distinction between System 1 and System 2 thinking.

Less technically than Thinking, The Righteous Mind treats System 1 as intuitive and System 2 as reasoning. Haidt uses the analogy of elephant and mahout to explain the different regimes. The intuitive or affective brain, like the walking elephant, is always active, constantly evaluating the perceived world, and leaning toward benefits and away from threats. The rider depends on the elephant and serves it somewhat as a lawyer serves a client—both as an advisor and as a defender. Sometimes the elephant takes the mahout's advice.⁴⁸

Haidt's general explanation of decision making helps the appellate advocate less than Kahneman's, but it includes useful insights and introduces Haidt's Part II—the moral foundations of decisions and judgments. That part of The Righteous Mind deserves careful reading. I will summarize what I have found most helpful.

The source of moral foundations helps understand their power. Nature and nurture combine to establish and weight moral foundations. Haidt adopts another scientist's metaphor of the brain as a book. Genes write the first draft—outlines—during fetal development. The chapters are filled in during childhood.⁴⁹ "Nature provides a first draft, which experience then revises. 'Built-in' does not mean unmalleable; it means 'organized in advance of experience.'"⁵⁰ This means a judge's moral foundations derive from natural selection in our species, cultural evolution, and experiences occurring no later than early adulthood. The appellate advocate should not expect to provoke change at the foundational level.

Haidt's research and others' work he reports show people have six moral foundations undergirding both intuitive decision making and philosophies that explain civic choices. I summarize the moral foundations in the next six subsections.

3.3.1. Care/Harm

The brain's capacity for care distinguishes mammals from most other classes of vertebrates and from life classified in other kingdoms. Mammals produce fewer offspring than do reptiles, fish, and amphibians; reproductive success hinges on investing parental resources in nurturing. Naturally, selection pressed mammalian brains to adopt processes that motivate caring for and preventing harm to offspring.

In our species, promoting care and preventing harm are the first moral value. Everyone expresses and acts on this value—except psychopaths. Every language...