Kelman, Mark, Stanford Law Review
INTRODUCTION I. PROBLEMS IN THE SIMPLE STORY A. How Significant Is the Resolution of the Underlying Philosophical Issue to Law? B. Why Might Particular Sorts of Commonsense Intuitions Matter? 1. Diversity of intuitions 2. Reflective intuitions 3. Unreflective intuitions: moral competency CONCLUSION
In Commonsense Morality and the Ethics of Killing in War, one of the many excellent papers presented at the Seventh Annual Conference on Empirical Legal Studies (CELS) here at Stanford, the authors set out to determine what it is that ordinary people actually think about whether one or another course of action that might be regulated by an international legal regime is actually the more moral course of action. (1) The paper's basic approach has been quite the rage over the past decade: experimental philosophers present vignettes to survey respondents and analyze how they respond to the vignettes. When surveying subjects about whether they think a particular action that legal regimes might permit, mandate, or proscribe is morally acceptable or desirable, authors typically advance two sorts of claims that the work they are doing is relevant to policymakers.
While it is the second of these kinds of claims that I will ultimately address in detail in this Essay, the first claim to relevance is critical to note as well, in part because this first claim is less controversial and in part because it is important to recognize how valuable this sort of empirical work really is even if only this claim to relevance were valid. The first claim could best be described as a functionalist claim about regime efficacy: it is important to know what commonplace moral beliefs are, because, all else equal, legal rules should track commonplace moral beliefs, even if these commonplace beliefs do not embody or even help us understand what is "truly" moral. (2) This is true in part because legal compliance and legitimacy flow from the intuitive plausibility or acceptability of substantive rules. People may more readily learn rules that they intuit would govern their conduct than they would learn counterintuitive rules; they may behave according to the rules they believe should govern behavior rather than those that actually do; they might not seek to enforce counterintuitive rules; they might well obey rules more readily even without regard to the expected selfish costs and benefits of obedience and disobedience if the rules we adopt comport with their moral intuitions; they might find a legal system more generally legitimate (and therefore respect even rules distinct from the precise rules at issue) if positive law typically matched beliefs. To the degree, too, that legislation ought to be responsive to popular will, vignette response gives us one sort of information about one relevant sort of public opinion. The authors of Killing in War indeed properly evoke these familiar functionalist justifications for caring about what commonplace morality demands. (3)
The second claim--that ascertaining what people's moral intuitions are will help us determine what legal rules are truly normatively desirable--is the more contested one, and it is this contention that I will focus on in this Essay. There is a simple story--maybe, alas, a simplistic one--about the contributions that empiricists might make to the work that normative philosophers interested in law and lawyers interested in philosophy do. The simple story goes something like this: First, there are a substantial number of legal issues whose proper resolution is at least sensitive to, and perhaps even determined by, the resolution of some issue that would be thought of as "philosophical." Second, many, though by no means all, philosophers believe that the resolution of many philosophical issues depends on specifying and clarifying commonplace intuitions about how the issue ought to be resolved. Their preferred solution to a philosophical question is merely the articulated, principled answer that covers cases that ordinary people decide in a fashion consistent with the articulated principle, though the common folk frequently could not articulate the principle. …