Intuitions.

• Author: Kelman, Mark
• Position: Accuracy of normative belief that ascertaining people's moral intuitions helps determine what legal rules are truly desirable - Seventh Annual Conference on Empirical Legal Studies: The Empirical Revolution in Law

INTRODUCTION I. PROBLEMS IN THE SIMPLE STORY A. How Significant Is the Resolution of the Underlying Philosophical Issue to Law? B. Why Might Particular Sorts of Commonsense Intuitions Matter? 1. Diversity of intuitions 2. Reflective intuitions 3. Unreflective intuitions: moral competency CONCLUSION INTRODUCTION

In Commonsense Morality and the Ethics of Killing in War, one of the many excellent papers presented at the Seventh Annual Conference on Empirical Legal Studies (CELS) here at Stanford, the authors set out to determine what it is that ordinary people actually think about whether one or another course of action that might be regulated by an international legal regime is actually the more moral course of action. (1) The paper's basic approach has been quite the rage over the past decade: experimental philosophers present vignettes to survey respondents and analyze how they respond to the vignettes. When surveying subjects about whether they think a particular action that legal regimes might permit, mandate, or proscribe is morally acceptable or desirable, authors typically advance two sorts of claims that the work they are doing is relevant to policymakers.

While it is the second of these kinds of claims that I will ultimately address in detail in this Essay, the first claim to relevance is critical to note as well, in part because this first claim is less controversial and in part because it is important to recognize how valuable this sort of empirical work really is even if only this claim to relevance were valid. The first claim could best be described as a functionalist claim about regime efficacy: it is important to know what commonplace moral beliefs are, because, all else equal, legal rules should track commonplace moral beliefs, even if these commonplace beliefs do not embody or even help us understand what is "truly" moral. (2) This is true in part because legal compliance and legitimacy flow from the intuitive plausibility or acceptability of substantive rules. People may more readily learn rules that they intuit would govern their conduct than they would learn counterintuitive rules; they may behave according to the rules they believe should govern behavior rather than those that actually do; they might not seek to enforce counterintuitive rules; they might well obey rules more readily even without regard to the expected selfish costs and benefits of obedience and disobedience if the rules we adopt comport with their moral intuitions; they might find a legal system more generally legitimate (and therefore respect even rules distinct from the precise rules at issue) if positive law typically matched beliefs. To the degree, too, that legislation ought to be responsive to popular will, vignette response gives us one sort of information about one relevant sort of public opinion. The authors of Killing in War indeed properly evoke these familiar functionalist justifications for caring about what commonplace morality demands. (3)

The second claim--that ascertaining what people's moral intuitions are will help us determine what legal rules are truly normatively desirable--is the more contested one, and it is this contention that I will focus on in this Essay. There is a simple story--maybe, alas, a simplistic one--about the contributions that empiricists might make to the work that normative philosophers interested in law and lawyers interested in philosophy do. The simple story goes something like this: First, there are a substantial number of legal issues whose proper resolution is at least sensitive to, and perhaps even determined by, the resolution of some issue that would be thought of as "philosophical." Second, many, though by no means all, philosophers believe that the resolution of many philosophical issues depends on specifying and clarifying commonplace intuitions about how the issue ought to be resolved. Their preferred solution to a philosophical question is merely the articulated, principled answer that covers cases that ordinary people decide in a fashion consistent with the articulated principle, though the common folk frequently could not articulate the principle. Third, while armchair philosophers might believe they can intuit what commonplace intuitions really are--mistaking introspection for population sampling--they might well be wrong: experimental empiricists could therefore advance philosophical inquiry by helping philosophers and philosophically inclined legal academics both learn how widespread an intuition about a particular legally relevant philosophical proposition might be and explore how commonplace intuitions could best be specified, by subtly altering experimental prompts in relevant ways and observing the shifts in responses these reformulations elicit. The Killing in War paper is a good piece to use to explore some of this story's virtues and pitfalls. At the same time, I will make reference to some of the other fine papers at the conference, as well as other literature in the empirical philosophy tradition, in trying to illustrate some of the ways in which the basic story is incomplete, unclear, or unpersuasive.

Here is the basic argument in the Killing in War paper. International legal norms about jus in bello--rules about the conduct of war and more particularly rules regulating when it is permitted or forbidden to kill in war, rather than the jus ad bellum rules that govern when wars can be permissibly fought at all--do and should significantly derive from moral/ethical beliefs about the propriety of killing during armed conflicts. (4) There is a normative philosophical dispute that the Killing in War authors believe can be understood as a debate between the "traditional" theorists" and "revisionists." (5) Traditionalists (most prominently Michael Walzer) believe that all killings of soldiers in wartime are justified, regardless of whether the soldiers are engaged in a just or unjust war, and that all intentional killings of civilians are unjustified (and that unintended side-effect killings of civilians should be minimized). (6) This is true without regard to the underlying propriety of the war the soldier is fighting and is true even if a soldier is less involved rather than more involved in the war effort, or a civilian more rather than less involved. (The traditional view is sometimes labeled a contractarian position--despite the obvious objection that many or most soldiers are conscripted--because soldiers, like boxers, are participating in a social practice in which participants waive their ordinary immunities from even potentially fatal batteries.) (7) The revisionist position, most associated with Jeff McMahan, is that the combatant/noncombatant line is not determinative: those people who are implicated in the prosecution of an unjust war should be vulnerable to the use of deadly force (whether soldiers or civilians highly enmeshed in the war effort) while those who are not (either because they are fighting with justification or because they are not truly implicated in the unjust war even if nominally serving as soldiers in the unjust belligerent nation's armed forces) should be immune from the use of force.

Both sides in the philosophical debate can be read to claim that the normative principles they are expressing are simply clear summaries or principled expressions of commonplace moral intuitions. (8) So, the authors of Killing in War test whether, for at least one subpopulation (Israeli Jews), people in fact would, acting in the role of a military commander, order a lethal attack in circumstances that would (at least ostensibly, seem to) justify such an order under one principle but not the other. (9) (They ask as well how they believe other Israelis would act in the same circumstance, how they would evaluate the morality of the decision to engage, and how guilty they would feel if they had ordered an attack.) The gist of the findings is not especially important for my purposes, though some of the ways in which the findings are difficult to interpret may be. Nonetheless, it is worth reporting the authors' finding that while the targets' formal status as soldiers or nonsoldiers did matter a great deal (just as Walzer would predict), it was not exclusively determinative of responses (just as McMahan would surmise). (10) Significant numbers of subjects also cared about the underlying justification of the war. (11) Finally, participants who believed that the war their side was fighting was unjust were prone to be especially scrupulous about following conventionally understood rules against harming civilians. (12)

The problems I will explore with the simple story can be summarized readily enough. The first proposition--that there are a substantial number of legal issues whose resolution significantly depends on the resolution of a philosophical quandary--may well be true, but it is equally important to recognize that the proper resolution of many legal issues is (and should be) either largely or wholly insensitive to the resolution of the philosophical debates even when the law deals with an issue that philosophers care about. As a first general approximation, I suspect that when people think that "philosophy" matters to law, they believe that a narrow branch of philosophy defending normative propositions about the morality of distinct personal actions) matters to law, and that legal rules should (with some limits) follow (or at least not violate) moral rules. But even setting aside the obvious point that philosophers are wholly uninterested in a wide range of legal disputes, (13) it is important to remember that we may think it apt to resolve an issue for reasons skew to the reasons that concern philosophers, both outside the domain of rules grounded in moral norms and, for reasons I explore, even within the domain of morality-based rules. (14)

The second proposition--that intuitions, however intuitions are defined, count a great deal if...