In defense of the use of commonsense psychology in the criminal law

Law and Philosophy

Volumn 25, Issue 6, 2006, Pages 571-612

  Sifferd, Katrina L ^a  

^a DARTMOUTH COLLEGE   (United States)

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EID: 33748316576     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1007/s10982-005-3802-7     Document Type: Article

References (83)

1. Sellars W., 'Empiricism and the Philosophy of Mind', in H. Feigl, M. Scriven, and W. Sellars (eds.), The Foundations of Science and the Concepts of Psychoanalysis, Minnesota Studies in the Philosophy of Science (Minneapolis, MN: University of Minnesota Press, 1956).
2. Sellars W., 'Empiricism and the Philosophy of Mind', The Foundations of Science and the Concepts of Psychoanalysis, Minnesota Studies in the Philosophy of Science 1956 Ibid.
3. Sellars W., 'Empiricism and the Philosophy of Mind', The Foundations of Science and the Concepts of Psychoanalysis, Minnesota Studies in the Philosophy of Science 1956 Ibid.
4. See, for example, Carruthers P. and Smith P., Theories of Theories of Mind (Cambridge: Cambridge University Press, 1996);
5. Dennett Daniel, 'Real Patterns', Journal of Philosophy LXXXVIII (1991): 27-51;
6. and Fodor Jerry, Psychosemantics: The Problem of Meaning in the Philosophy of Mind (Cambridge, MA: MIT Press, 1987).
7. This doesn't necessarily mean the theory operates consciously: there are very many cognitive capacities instantiated in mechanisms in the mind that are subconscious, such as some aspects of vision (like construction of 2D and 3D images) and the monitoring of body temperature.
8. Fodor Jerry, 'Special Sciences (or the Disunity of Science as a Working Hypothesis)', Synthese 28 (1974): 97-115.
9. Jerry Fodor, for example, argues that we have no alternatives to the vocabulary of CSP if we want our behaviors and their causes to be subsumed by any counterfactual-supporting generalizations that we know about. Talk of mental states and consequential behavior are of irreducibly psychological categories, and therefore CSP cannot be reduced into another type of explanatory framework in cognitive science. Fodor argues that "...the subsumption of the motions of organisms... by the laws of physics does not guarantee that there are any laws about the motions of organisms qua motions of organisms." Fodor, Psychosemantics: The Problem of Meaning in the Philosophy of Mind 9. According to Fodor, if we want to talk about the behavior of humans, and not the behavior of neurons, we're going to have to use CSP.
10. As we shall see below, however, it is not required that a realist about CSP believe that human behavior can be explained only in commonsense psychological terms. Realists who believe that commonsense psychological terms can be reduced to another type of explanation claim that human behavior may be explained truly using a commonsense psychological vocabulary and some other vocabulary (usually one coming from scientific psychology).
11. Moore Michael S., Law and Psychiatry: Rethinking the Relationship (Cambridge: Cambridge University Press, 1984) 36.
12. Ryle Gilbert, The Concept of Mind (London: Hutchinson's University Library, 1949) 327.
13. Ryle Gilbert, The Concept of Mind, 1949, 327. Ibid.
14. Noam Chomsky, famous linguist and critic of Skinner, sums up Skinner's project in the following way: "What is so surprising [about Skinner's program] is the particular limitations he has imposed on the way in which the observable of behavior are to be studied..." Chomsky notes that "One would naturally expect that prediction of the behavior of a complex organism (or machine) would require, in addition to information about external stimulation, knowledge of the internal structure of the organism, the ways in which it processes input information and organizes its own behavior." But Skinner attempts to explain verbal behavior without referring to the internal operations of the speaker, on the grounds that "...the contribution of the speaker is quite trivial and elementary, and that precise prediction of verbal behavior involves only specification of the few external factors that he has isolated experimentally with lower organisms." Noam Chomsky, 'A Review of B.F. Skinner's Verbal Behavior', Language 35, no. 1 (1959): 27-28.
15. Dennett Daniel, 'Skinner Skinned', in Brainstorms (Bradford Books, 1978).
16. Dennett Daniel, 'Skinner Skinned', in Brainstorms, 1978 Ibid.
17. Dennett claims that Chomsky "...takes this to be Skinner's prime objection against mentalistic psychology..." but Dennett rightly notes that "...Skinner elsewhere is happy to note that 'Science often talks about things it cannot see or measure' so it cannot be that simple." Dennett Daniel, in Brainstorms, Ibid., 55.
18. As Dennett puts it: "In several places Skinner hints that what is bothering him is the ease with which mentalistic explanations may be concocted. One invents whatever mental events one needs to 'explain' the behavior in question." Dennett Daniel, in Brainstorms, Ibid., 56.
19. Dennett quotes Skinner as saying: "Science does not dehumanize man; it de-homunculizes him...Only by dispossessing him can we turn to the true causes of human behavior. Only then can we turn from the inaccessible to the manipulable." Dennett Daniel, in Brainstorms, Ibid., 57.
20. Dennett Daniel, in Brainstorms, Ibid., 60.
21. Dennett Daniel, 'Skinner Skinned', in Brainstorms, 1978 Ibid.
22. Dennett Daniel, 'Skinner Skinned', in Brainstorms, 1978 Ibid. Of course, commonsense psychological terms need not be translated into functional explanations, the option Dennett suggests: any sort of non-intentional explanation of behavior may serve to scientifically ground commonsense psychological terms. I will explore some of the options currently on offer in later sections of this paper.
23. Moore, Law and Psychiatry; Rethinking the Relationship.
24. Moore, Law and Psychiatry; Rethinking the Relationship. Ibid., 36.
25. Moore, Law and Psychiatry; Rethinking the Relationship. Ibid., 38.
26. Posner Richard, The Economics of Justice (Cambridge, MA: Harvard University Press, 1981).
27. However, under law and economics models the optimal penalty for any given crime is not determined by its deterrent effect alone. Law and economics advocates explore what degree of penalty will have the optimum deterrent effect by considering the cost of imposing the penalty on society. Although it would certainly be a successful means of deterring speeding, the cost of placing speeders in prison for life would be an enormous burden for those who managed to stay out of jail (resulting in a decrease in the society's total utility or happiness). Hence, due to the constraints of efficiency, the law and economics model is generally used to determine the minimum penalty with the desired deterrent effect.
28. Posner Richard, The Problems of Jurisprudence (Boston, MA: Harvard University Press, 1990) 177.
29. Posner claims he can do this in the briefcase situation, by asking courts to look to prior behaviors indicating planning to commit the theft or gain from the crime.
30. Posner Richard, 'An Economic Theory of Criminal Law', Columbia Law Review 85 (1985): 1193-1194.
31. There are other, more general, problems with Posner's view of humans as rational maximizers. Although Posner doesn't provide his readers with an explanation of the sort of utility maximizing his theory is based upon, it seems that he uses a standard account of reason; one that would derive norms for human reasoning from formal theories such as logic, probability theory, and decision theory. Generally, these norms are then thought of as 'universal principles' of reasoning, and according to such an account what it is to reason correctly is to reason in accordance with these principles. There is little evidence in support of a standard account of human rationality, and plenty of evidence against it. Problems with the standard account include the following: (1) There seems to be no single way to apply the norms of the standard picture to any particular action (Gigerenzer G., Todd P., and ABC Research Group, Simple Heuristics That Make Us Smart (New York: Oxford University Press, 1999).),
32. The principles of the standard picture are subject to different interpretations (Gigerenzer, Todd, and Group, Simple Heuristics That Make Us Smart),
33. Different formal theories lead to incompatible claims about human reason, and it isn't clear which ones should be used to derive the principles of reason (Richard Samuels, Stephen Stich, and Patrice Tremoulet, 'Rethinking Rationality: From Bleak Implications to Darwinian Modules', in E. LePore and Z. Pylyshyn (eds.), What is Cognitive Science? (London: Blackwell, 1999),
34. and (4) It isn't clear that a derivation of these formal theories leads to actual norms of reason at all. For this one would need a 'principled account of the correct conversion schema for rewriting formal rules as normative principles, and there isn't one. (Samuels, Stich, and Tremoulet, 'Rethinking Rationality: From Bleak Implications to Darwinian Modules.')
35. It is thus a problem for Posner that he isn't clear on which 'standard accounts' of reason he is using. Determining the norms of reason shouldn't be left up to judges or juries - as a result defendants would be subject to different standards of culpability in different courtrooms. But even if Posner did advocate a single account of reason, it won't necessarily translate into specific norms of reason that could be applied to determine guilt.
36. Kahneman D., Slovic P., and Tversky A. (eds.), Judgment under Uncertainty: Heuristics and Biases (Cambridge: Cambridge University Press, 1982),
37. Tversky A. and Kahneman D., 'Judgment under Uncertainty: Heuristics and Biases', Science 185 (1974): 1124-1231.
38. Gigerenzer, Todd, and Group, Simple Heuristics That Make Us Smart.
39. Dennett, 'Skinner Skinned', 55.
40. Posner, The Problems of Jurisprudence, 165.
41. Posner, The Problems of Jurisprudence, 165. Ibid.
42. Posner, The Problems of Jurisprudence, 165. Ibid.
43. Smart JJC, 'Sensations and Brain Processes,' Philosophical Review 66 (1959): 141-156.
44. 'Ontologically radical' eliminativism has been distinguished from 'ontologically conservative' eliminativism in the philosophy of mind literature precisely to distinguish proposals that do not allow for reduction from those that do. See, for example, Savitt S., 'Rorty's Disappearance Theory', Philosophical Studies 28 (1974): 433-436.
45. and Stephen Stich, Deconstructing the Mind (New York: Oxford University Press, 1996) 94.
46. Paul Churchland, 'Eliminativist Materialism and the Propositional Attitudes', Journal of Philosophy 78 (1981): 67.
47. As Brian Loar notes: "...If it were to turn out that the physical mechanisms that completely explain human behavior at no level exhibited the structure of beliefs and desires, then something we had all along believed, viz. that beliefs and desires were among the causes of behavior, would turn out to be false." Brian Loar, Mind and Meaning (Cambridge: Cambridge University Press, 1981) 14.
48. This reinterpretation of a referent of a commonsense concept can occur not just due to new scientific knowledge, but due to any new personal knowledge. Embarrassingly, because I watched too many 'Love Boat' episodes at too young an age, I thought the term 'night cap' referred to an adult sleepover until I was 22, when someone finally set me straight.
49. Baron-Cohen S., Mindblindness: An Essay on Autism and Theory of Mind (Learning, Development and Conceptual Change) (Cambridge, MA: MIT Press, 1995) 127.
50. Stich, Deconstructing the Mind, 94.
51. Churchland Paul and Churchland Patricia Smith, On the Contrary: Critical Essays, 1987-1997 (Cambridge, MA: MIT Press, 1999).
52. Churchland Paul and Churchland Patricia Smith, On the Contrary: Critical Essays, 1987-1997 Ibid., 7.
53. Churchland Paul and Churchland Patricia Smith, On the Contrary: Critical Essays, 1987-1997, 1999, Ibid.
54. Churchland Paul and Churchland Patricia Smith, On the Contrary: Critical Essays, 1987-1997, 1999, Ibid.
55. Lelling Andrew E., 'Eliminative Materialism, Neuroscience and the Criminal Law', University of Pennsylvania Law Review 141, no. 1471 (1992-1993), 1471-1564.
56. Lelling Andrew E., 'Eliminative Materialism, Neuroscience and the Criminal Law', University of Pennsylvania Law Review 141, no. 1471 (1992-1993), 1471-1564. Ibid.
57. Lelling Andrew E., University of Pennsylvania Law Review Ibid., 1506.
58. Lelling Andrew E., 'Eliminative Materialism, Neuroscience and the Criminal Law', University of Pennsylvania Law Review 141, no. 1471 (1992-1993), 1471-1564. Ibid.
59. Note that while CSP has remained 'fundamentally' intact our beliefs about the referents of its concepts have changed to some extent. For example, after Freud's work became well-known it became common to refer to 'unconscious' beliefs and desires. In addition, over the past 50 years our general knowledge about what happens in the brain when one is insane, intoxicated or mentally retarded has become much more sophisticated. A better understanding of these phenomena has led to judges and juries to better use the concepts when generating verdicts.
60. That Lelling evaluates the 'progress' of CSP from this perspective just highlights how he has the wrong end of stick when he claims that "...if folk psychology represents a verifiable science, there should have been at least some discoveries during the past two millennia marking its progress, as there were with every other empirical science". Lelling, "Eliminative Materialism, Neuroscience and the Criminal Law", 1508. No one claims that CSP is an empirical science in this sense. CSP is not a scientific theory; it is a commonsense theory, which by definition means it is a theory used by average 'folk' without use of the tools of science.
61. Churchland and Churchland, On the Contrary: Critical Essays, 1987-1997.
62. Regardless of its 'incompleteness', many would argue that our default position should be an assumption that the theory of CSP is true, primarily because CSP appears to be so successful as a theory of human behavior. The truth of CSP seems to be the best explanation for the success we enjoy in interpreting and predicting each other's behavior. Further, the difficulty autistics face with social relations may provide some insight into a world where we didn't have the tools of CSP at our disposal. For more specific arguments regarding the veracity of CSP, see Fodor, Psychosemantics: The Problem of Meaning in the Philosophy of Mind. While Fodor admits that the predictive power of CSP isn't 100% accurate, he argues that the ceteris paribus phrases necessary for CSP generalizations are similarly necessary in all of what Fodor calls the 'special sciences'; sciences such as psychology and geography that quantify over different types of entities - 'natural' or 'real' kinds. Fodor argues that the special sciences support counterfactual s even though they have exceptions, because in the special sciences we can't enumerate all the conditions under which the generalizations will hold using the vocabulary of a special science.
63. Fodor, "Special Sciences (or the Disunity of Science as a Working Hypothesis)."
64. Lelling, 'Eliminative Materialism, Neuroscience and the Criminal Law', 1498.
65. Lelling, 'Eliminative Materialism, Neuroscience and the Criminal Law', Ibid., 1500.
66. Lelling, 'Eliminative Materialism, Neuroscience and the Criminal Law', 1498. Ibid.
67. See Dretske and Peacock's chapters in York Gunther (ed.), Essays on Nonconceptual Content (Cambridge, MA: MIT Press, 2002).
68. Dennett Daniel, Things About Things (1998).
69. Lelling, 'Eliminative Materialism, Neuroscience and the Criminal Law', 1504.
70. Fodor, Psychosemantics: The Problem of Meaning in the Philosophy of Mind.
71. Lelling, 'Eliminative Materialism, Neuroscience and the Criminal Law', 1504.
72. Putnam Hilary, Mind, Language and Reality (Cambridge: Cambridge University Press, 1975).
73. Lelling, 'Eliminative Materialism, Neuroscience and the Criminal Law', 1502.
74. Lelling, 'Eliminative Materialism, Neuroscience and the Criminal Law', Ibid., 1503.
75. Kim Jaegwon, 'Events as Property Exemplification', in Supervenience and Mind: Selected Philosophical Essays (Cambridge: Cambridge University Press, 1993),
76. David Papineau, Philosophical Naturalism (Oxford: Blackwell, 1993).
77. Lelling, 'Eliminative Materialism, Neuroscience and the Criminal Law', 1511.
78. Lelling, 'Eliminative Materialism, Neuroscience and the Criminal Law', Ibid., 1513.
79. Putnam Hilary, Representation and Reality (Cambridge, MA: MIT Press, 1988).
80. Lewis David, 'Psychophysical and Theoretical Identifications', Australasian Journal of Philosophy 50 (1972): 249-258.
81. Davidson Donald, Essays on Actions and Events (Oxford: Clarendon Press, 1980).
82. Lelling, 'Eliminative Materialism, Neuroscience and the Criminal Law,' 98.
83. Many thanks to David Papineau and Michael S. Moore for invaluable comments on earlier drafts of this article. I am also indebted to Walter Sinnott-Armstrong, Susan Brison and the Rockefeller Center for their support during my fellowship at Dartmouth College.