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"Smart people (like smart lawyers) can come up with very good explanations for mistaken points of view."

- Richard P. Feynman, Physicist

"There is a danger in clarity, the danger of over looking the subtleties of truth."

-Alfred North Whitehead

August 9, 2010

Moral Processes

The criminal law makes distinctions regarding the moral culpability of an actor based upon the actor’s mental state or mens rea. However, in practice, it also punishes acts that result in greater harm more severely than those acts with less or no resulting harm. Research shows a psychological basis for some of the distinction.

Research into the development of moral judgment in children show that young children view the harm caused by an action as more important than the mental state of the actor when children make a moral decision. Something is bad if something bad happens—regardless of the intent of the actor. The relative importance of the result of an action and the intent of the actor switch as the child gets older.[i]

Recent research using both behavioral and brain imaging results reveals some insights on moral judgments.[ii] The study used 2 X 2 vignettes where 1.) the actor intended harm and harm occurred; 2.) the actor intended harm and was unsuccessful (an attempt at harm); 3. The actor didn’t intend harm but harm occurred; 4.) and the actor didn’t intend harm and no harm occurred.[iii]

First, subjects had to rate the moral acceptability of a situation from a range between being completely forbidden to completely permissible. As expected, actions performed with intent to harm were judged as more forbidden than those without the bad intent. Actions performed with no intended harm that did result in harm were judged as more forbidden than those actions where no harm was intended and no harm occurred. However, actions where harm was intended but where no harm occurred were judged as forbidden as a successful intentional harm.[iv]

The researchers then analyzed the brain scans of the subjects taken while being tested. The researchers were looking at various regions of the brain that had been identified as related to beliefs and cognitive conflicts. The researchers concluded that the brain scan results show the areas related to belief are most active during the situations where harm was intended but no harm occurred. Reaction time was quickest in situations where harm was intended and harm occurred—the situation that is most consistent.[v]

In situations were no harm was intended but harm occurred, the brain scans indicated that the areas related to cognitive conflict were active. The researchers concluded that in the cases of unintentional harm, participants had to override moral judgments, triggered by the harm, by using other cognitive mechanisms, to exculpate the unintentional actor. The researchers state “Moral judgment may therefore represent the product of two distinct and at times competing processes, one responsible for representing harmful out-comes and another for representing beliefs and intentions…..We suggest that a late-developing process for representing mental states together with an early developing process responsible for representing harmful consequences contribute to moral judgment in mature adults, and in some cases, the processes may interact competitively.”[vi]

Judges and others in the criminal justice system encounter situations where the moral culpability of an actor is relatively low, but the harm is great. These are some of the most difficult decisions, probably partially because of the conflict in these psychological processes, but also because a conflict with the objectives of criminal sentencing. I will discuss that in another entry.



[i] Young, Liane, Fiery Cushman, Marc Hauser, and Rebecca Saxe, 2007, “The neural basis of the interaction between theory of mind and moral judgment. PNAS, Vol. 104 No 20 pp. 8235-8240.

[ii] Ibid.

[iii] Ibid p 8236

[iv] Ibid p. 8236

[v] Ibid. p. 8239

[vi] Ibid p 8239

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

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