Download Example solution Legal Theory II (11. January 2010)

Prof. Dr. Matthias Mahlmann
University of Zurich
Autumn Semester 2010
Example solution Legal Theory II (11. January 2010)
1. Please explain central elements of a mentalist theory of moral cognition. (20 P)
 Theory of mind, brain and cognition
 Early theory of mind by Descartes: ontological and qualified dualism; representational theory
 Despite “Descartes’ error” (ontological dualism, independence of mind and
body implausible), important achievements concerning description of mind,
causality mind/brain and representational theory of mind
 Mental states depend on brain: Selective brain damage may lead to selective
mental disorder (e.g. case of Phineas Gage)
 Modularity of mind
 Cognitive structures lead to certain states of mind
 Universal moral grammar
 Set of principles: foundational judgements (Grundurteile): e.g. altruism and
justice-as-equality
 Innate (which doesn’t mean it has to be fully present already at birth, but may
require environmental stimulation in order to develop full potential)
 Universal and uniform across the species, part of natural makeup of human being
 Distinction between faculty (ability, e.g. moral faculty) and performance (use
of ability, e.g. moral judgement)
 Content of moral faculty: conscience
 Generating moral judgements
 Takes into account historical, social and cultural embeddedness of present
moral rules
 Analogy to Universal Grammar
 Inborn universal cognitive structure generating language
 Natural languages unfold in framework of Universal Grammar
 Evidence: Brain lesions; Pidgeon/ creole-languages; language acquisition;
poverty of stimulus
Another aspect which was sometimes mentioned: According to a mentalist theory of moral
cognition, emotions and empathy are not constitutive elements of moral judgement. Emotions
may rather be the result of such judgments. Empathy is regarded as a heuristic tool.
2. How can one establish that a mental structure is inborn? (15 P)
 Poverty of Stimulus argument
 What cannot be learned, must be inborn
 “Inborn” does not mean fully present at the time of birth (e.g. sexual organs
are inborn but not fully present at the time of birth)
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“Learned” means acquired through study, repetition, conscious effort (cf.:
standard learning model)
A mental structure which is in place must be inborn if it can’t be created by
“input” through learning or experience (“qualitative gap”)
 E.g. vision
 visual cognition is creating visual illusions which are not learned in this sense
(you are not trained to see triangles e.g. in Kanisza-Triangle)
 E.g.: Language acquisition
 Presence of knowledge structures that are not learned
 E.g.: Certain aspects of morality
 Children differentiate between moral and conventional norms
 Can you explain to a child what the moral space or the content of a moral
judgement (e.g. the principle of altruism without regard to specific cases) is?
Another possible aspect which was frequently mentioned: alternative strategies to establish
that a mental structure is inborn, e.g. the – due to ethical and methodological considerations –
unfeasible isolation of newborn babies (Kaspar Hauser).
3. Please give an example for a descriptively adequate analysis of certain kinds of moral
judgments (for example the moral evaluation of acts beneficial to others). (25 P)
Please note that in this question it was asked for a descriptively adequate analysis of a certain
kind of moral judgement, as opposed to an explanatory account of the same phenomenon.
The difference of both should be kept in mind, since explanatory attempts may often be misleading when they are not based on an accurate description of a phenomenon, but take certain
(descriptively unfounded) premises for granted.
E.g.: Moral evaluation of altruistic behaviour
 Distinction between intentions and consequences
 Distinction between foreseen and intended effects
 Agency constitutive for moral evaluation
 Intention of action decisive for moral evaluation
 Moral value dependent on disregard for one’s own interests or the interests of a third
party
 Volitional consequences:
 Action good
- Obligatory: right of other to action
- Supererogatory (laudable, but not obligatory): no right of other to action
 Action bad
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- Prohibited: right of others to omission
Action neutral
- Permitted: no right of others to action/ omission
Alternative: For example an emotivist account including a substantiation that this account is
descriptively adequate given the moral experience.
4. Some experts offer an assessment of the credibility of a witness based on fMRI. Which
kind of questions arise as to the use of such techniques in a legal context? (10 P)
 Validity of results questionable
 fMRI (= functional Magnetic Resonance Imaging) only indirect way of indicating brain activity by measuring difference of oxygen content in blood
(BOLD-effect)
 Poor temporal resolution of fMRI: increased blood-flow approx. 1-5 seconds
after event (neural activity)
 Data get meaning only in theoretical context (theory dependence of brain imaging data)
 Absences of comprehensive theory of the functioning of the brain
 Problem of reverse inference: Same brain regions are active during performance of many different tasks. E.g. one cannot conclude form activation of brain
region A that has been active performing emotionally engaging task that always when A is activated, emotions are engaged.
Another important – and frequently mentioned – aspect: Images of brain activity don’t show
single brain function but consist of aggregated data from different persons. From the legal
perspective, only the individual case is crucial for a decision (e.g. concerning guilt). A social
probability can’t lead to an accurate assessment of a particular case.
 Ethical considerations, e.g.:
 human dignity
 freedom and privacy of thought
5. What is meant by “adaptionism” in evolutionary theory? Is this approach a useful
framework to study the evolution of the human mind? (10 P)
 Adaptionism
 Assumption of Evolutionary Psychology
 Based on theory of natural selection and reproductive (inclusive) fitness
 Based on assumption that mutations lead to different physical traits and behaviours which are hereditary
 Adaptations improve reproductive fitness
 Organisms have only traits that are adaptive
 General Criticism
 Functionalist fallacy
 Existence of non-adaptive mutations
 Existence of non-adaptive side effects of adaptive properties
 Existence of architectural constraints
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Alternative to adaptionism: Evolutionary pluralism
 Special problems concerning the human mind
 Reproductive function within species for first individual possessing cognitive
faculty?
 Lack of close relatives of human beings; what cognitive capabilities did predecessors possess?
Another frequently mentioned aspect: The problem of homologous and analogous structures:
It is often uncertain which kinds of behaviour observable in two different species can be
traced back to common ancestors (homologous structures) and which are only a result of
similar functional requirements (analogous structures).
6. In which way can in your view legal theory profit from cognitive science? What are
the prospects, what are the limits of this approach? (20 P)
Among the answers to this question, any well-founded (particularly critical) considerations
were appraised. The following aspects are only examples for a wide range of such answers.
 Prospects
 Grundurteile (foundationale judgements) cognitive precondition of possibility
of law
 Trust in higher mental faculties
 Consequences of culture of justice and human care may be beneficial
 (Descriptive) foundation for human rights? For dignity, integrity, equality,
solidarity?
 Unlike theories of Marx, Nietzsche, post-modern philosophy etc.: Humans not
protean beings
 Interpretation, application of the law in the light of moral principles, not the
least justice
 Implications for concepts of free will and responsibility (relevant for all
branches of law)
 Limits:
 No shortcut from theory of the human mind to law
 Moral component one of various elements decisive for the foundation of law
 Only Grundurteile (foundational judgements), specific legal rules = construction
 Not everything that is natural, must be good (naturalistic fallacy), psychology
and validity: human moral judgements cannot justify the morality of human
moral judgements
 Legal concept of responsibility not (only) based on natural science, but partly a
social construction
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