Recently Posted on SSRN (and published at the Law & Neuroscience eJournal):
"Is Deontology a Heuristic? On Psychology, Neuroscience, Ethics, and Law"
CASS R. SUNSTEIN, Harvard Law School
A growing body of psychological and neuroscientific research links
dual-process theories of cognition with moral reasoning (and implicitly
to legal reasoning as well). The relevant research appears to show that
at least some deontological judgments are connected with rapid,
automatic, emotional processing, and that consequentialist judgments
(including utilitarianism) are connected with slower, more deliberative
thinking. These findings are consistent with the claim that
deontological thinking is best understood as a moral heuristic – one
that generally works well, but that also misfires. If this claim is
right, it may have large implications for many debates in politics,
morality, and law, including those involving the role of retribution,
the free speech principle, religious liberty, the idea of fairness, and
the legitimacy of cost-benefit analysis. Nonetheless, psychological and
neuroscientific research cannot rule out the possibility that
consequentialism is wrong and that deontology is right. It tells us
about the psychology of moral and legal judgment, but it does no more.
On the largest questions, it leaves moral and legal debates essentially
as they were before.
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