Document Type

Article

Publication Date

Summer 2008

Keywords

Cass Sunstein, Moral Heuristrics, Moral philosphy, Heuristrics and biases

Disciplines

Legal History | Philosophy of Mind | Social Psychology

Abstract

Commenting on Professor Cass Sunstein's work is a daunting task. There is simply so much of it. Professor Sunstein produces scholarship at a rate that is faster than I can consume it. Scarcely an area of law has failed to feel his impact. One cannot today write an article on administrative law, free speech, punitive damages, Internet law, law and economics, separation of powers, or animal rights law without addressing one or more of Sunstein's papers. And his work is typically not a mere footnote. Sunstein has changed how scholars think about each of these areas of law. More broadly, his work has made his mark on psychology, economics, and political science. But, surprisingly, one of his most subversive, and important, articles, Moral Heuristics, is directed primarily at philosophers.

Sunstein's Moral Heuristics approaches the gates of philosophical discourse like a Trojan Horse. The article's title uses the well-known jargon of psychology. This is no surprise, as the piece is published in a psychological journal (albeit one known for sometimes engaging in philosophical inquiry). It thus seems that the piece will be another of his many valuable conversions of psychological research into legal concepts. Sunstein is well known for mining out nuggets of social and cognitive psychology that have been previously ignored by legal scholars and demonstrating that an understanding of these principles is actually critical for understanding some area of law. But Moral Heuristics is not such a piece. It brings some psychological research to bear on legal issues, but the piece is more ambitious than that. It provides a new way for both psychologists and legal scholars to think about the concept of heuristics. It then uses this new approach to challenge the basic epistemological assumptions of contemporary moral philosophy.

The basic thesis of Moral Heuristics is that people rely on simple habits of the mind when thinking about moral issues. As in many areas of life, they do not adhere to principles of deductive logic. They resist relying on broad-based optimization strategies (such as cost-benefit analysis) as a means of addressing hard moral questions in favor of simple rules of thumb. For example, Sunstein argues that people avoid making decisions that they know will result in the death of another person. This is a good principle to follow, of course, but blind application of it can lead to paradox because some fatalities are more invisible than others. The principle can produce condemnation of those who account for less visible, indirect fatalities, as happens in cost-benefit analysis. Cost-benefit analysis makes indirect fatalities transparent, thereby making those who rely on it seem callous, even if they are trying to minimize the total fatality rate.

But Sunstein's admonition against using overly simple habits of mind to assess complex choices in modern society is not what is novel about this paper. Many of his papers engage in that kind of exposition. What sets this paper apart is how he uses the concept of heuristics. In this paper, Sunstein uses the idea of mental shortcuts in a highly contextual way. He seems, at times, to be inventing new heuristics. New to this paper are terms such as the "'cold-heart heuristic'" and the "'do not play God'" heuristic. And obviously the 'Justice Antonin Scalia heuristic"' is not one psychologists would have heard before. Implicit in this move is that Sunstein must be arguing that the mental shortcuts that people are taking are highly specific. They are not global habits of mind that people use in all places to suit all purposes. Rather, people seize upon these heuristics to solve certain problems. That is a novel move and one that nicely embraces some of the criticisms levied against the concept of heuristics, both in psychology and in law, and shows them to be modifications, rather than criticisms.

The second novel claim of the paper is its main target. In asserting that the psychological concept of heuristics speaks directly to the epistemology of moral philosophy, Sunstein attacks the foundations of contemporary moral philosophy. Sunstein argues that people reject deductive logic in their approach to statistical and probabilistic reasoning, preferring instead to rely on heuristics that are often inconsistent with logic. Consequently, creating a workable, internally coherent mathematics based on people's intuitions about numbers would be a foolish undertaking. Sunstein argues that the same is true for moral philosophy. Intuitions about moral issues, he contends, are no more apt to be coherent than intuitions about probability theory. Therefore, founding a normative theory of moral philosophy upon intuition is just as misguided as founding mathematics on intuition. And yet, that is exactly what contemporary moral philosophers undertake.

I flesh out these issues in this paper. First, I discuss how Sunstein's approach to heuristics differs from what many psychologists adopt and how this new approach addresses some of the criticism levied at the heuristics and biases literature. Second, I review how this new approach undergirds Sunstein's critique of moral philosophy.

Publication Citation

Published in: Tulsa Law Review, vol. 43, no. 4 (Summer 2008).

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