I have authored a preface for a book that is being edited by Eugene Borgida and fellow Situationist contributor Susan Fiske called Beyond Common Sense: Psychological Science in Court. For The Situationist, I am posting a two-part series derived from that preface. Earlier this month I posted Part I, which described the bounds on our ability to be who we’d like to be, and how, depending upon the situation, good people can not only be bad, but just as bad as bad people. Part II of this post highlights the “good news” associated with our moral obligation to be intelligent and indicates how Beyond Common Sense can be a guide in the fulfillment of that obligation.
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The good news comes from observations that we are flexible, sensitive to context and adapting to changing demands. As just one example, fellow Situationist contributor Susan Fiske has shown that although social groups dictate how we look at individuals, we see people as individuals rather than as members of social groups – if knowledge about their groups becomes irrelevant to the task at hand.
We change our behavior – actively, by placing ourselves at tables where the food tastes like nothing we’ve eaten before. First we spit it out, then we become addicted. Likewise, first we might shy away or fight, but if the stakes change we are equally naturally able to cooperate and help. We also change our minds, or rather our minds are changed. Phoebe Ellsworth and Samuel Gross’s analysis of radical shifts in attitude toward capital punishment is worth scrutiny not just because of what it says about that blemish but also for what it says about the very concept of attitude. So this remarkable flexibility is also a part of what we’ve discovered it means to be human. Attitudes, preferences, beliefs, values and the behaviors that reflect them aren’t fixed even though they may appear that way, perhaps because the world they reflect is relatively stable.
In both – understanding the limits and the capacities of humans in the context of social relationships, social groups and social institutions – lies the stuff of what the law must be intelligent about. To be intelligent means many things of course. For the present purpose, I’ll underscore that intelligence is knowing how to weigh the evidence that flies in the face of steadfast assumptions. It means to know when causality can be inferred and not, to know when the weight of correlational evidence must be taken seriously, to know that a replication is worth much more than a single demonstration, to know that when new methods divulge strange truths about us and our brethren, it may be the theory that has to go. The moral obligation to be intelligent requires that we keep abreast of discoveries that require old views to be bagged and put out on the curb for recycling – every week.
Eugene Borgida and Susan Fiske have blown life into John Erskine’s idea that we are morally obliged to be intelligent. They understand that although this requirement should be everywhere, it is so much more urgent where decisions carry the authority of the law, where decisions wield justice, where the difference between suffering and happiness lies in the power given to a few and chosen to defend the many and less chosen.
Over the last decade as my own conversations with judges and lawyers has increased, I have been filled with admiration for their ability to understand large and obscure areas of knowledge they are required to for every case before them, only to learn entirely new domains required by the next one. But let me push here a bit. To understand, for example, the technicalities of the Challenger disaster in order to assign legal responsibility, is one thing. It is quite another to develop a feeling for the tectonic movements of a science so as to be ready to anticipate and cope with the big breaks when they occur. It is this latter form of education that Borgida and Fiske’s volume offers.
The research presented in this book shows what the mind and behavioral sciences have discovered about perception, memory, judgment and decision-making; about discrimination generally, about racial profiling, harassment, and capital punishment more specifically. But these papers do more than tackle a set of topics. As a totality they also reveal a way of knowing, of a unique type of expertise that has developed iteratively about human nature and social circumstances that stands ready to be absorbed into the bones of the law.
Treat this book as a sanctuary in which to allow the mind to change its view of itself. Reading it, I was struck by the strength of the experimental evidence in some cases, the strength of the integration and argument in others, and above all the singular message it offers up: common sense may be plenty common, but it isn’t always sense.
The building blocks of concepts the law fundamentally deals with – mental states and social structures – are the topics of this volume, and in them lies much of what we are morally obliged to be intelligent about.