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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) 1 “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 2 - 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 3 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 4