He Who Cast the First Stone Probably Didn’t at Law & Society Blog

He Who Cast the First Stone Probably Didn’t

Published by Manfred Gabriel July 26th, 2006 in Uncategorized

Don’t miss Daniel Gilbert’s interesting Op-Ed over at the New York Times: He Who Cast the First Stone Probably Didn’t. Gilbert writes about recent experiments that show that (a) we tend to regard our own actions as consequences (of the actions of others) and the actions of others as causes, and (b) that we tend to escalate responses. Both points are important in law and jurisprudence, not only when we consider justification and exculpation, but in a broader sense when constructing the foundations of the criminal-justice system in society. A fascinating aspect is the empirical foundation of moral or immoral behavior. Here is a taste:

The results revealed an intriguing asymmetry: When volunteers were shown one of their own statements, they naturally remembered what had led them to say it. But when they were shown one of their conversation partner’s statements, they naturally remembered how they had responded to it. In other words, volunteers remembered the causes of their own statements and the consequences of their partner’s statements.

What seems like a grossly self-serving pattern of remembering is actually the product of two innocent facts. First, because our senses point outward, we can observe other people’s actions but not our own. Second, because mental life is a private affair, we can observe our own thoughts but not the thoughts of others. Together, these facts suggest that our reasons for punching will always be more salient to us than the punches themselves — but that the opposite will be true of other people’s reasons and other people’s punches.

Examples aren’t hard to come by. Shiites seek revenge on Sunnis for the revenge they sought on Shiites; Irish Catholics retaliate against the Protestants who retaliated against them; and since 1948, it’s hard to think of any partisan in the Middle East who has done anything but play defense. In each of these instances, people on one side claim that they are merely responding to provocation and dismiss the other side’s identical claim as disingenuous spin. But research suggests that these claims reflect genuinely different perceptions of the same bloody conversation.

If the first principle of legitimate punching is that punches must be even-numbered, the second principle is that an even-numbered punch may be no more forceful than the odd-numbered punch that preceded it. Legitimate retribution is meant to restore balance, and thus an eye for an eye is fair, but an eye for an eyelash is not. When the European Union condemned Israel for bombing Lebanon in retaliation for the kidnapping of two Israeli soldiers, it did not question Israel’s right to respond, but rather, its “disproportionate use of force.” It is O.K. to hit back, just not too hard.

Research shows that people have as much trouble applying the second principle as the first. …

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5 Responses to “He Who Cast the First Stone Probably Didn’t”

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1 Benjamin Nelson Jul 27th, 2006 at 1:47 pm

Nod, this is what the social psychologists call the “fundamental attribution error”, usually explained in terms of the “locus of attribution” and such.

What’s interesting, though, is that the explanation-from-solipsism that’s been offered seems less than adequate. According to my prof in first year psychology, the error seems to be less prevalent in those who suffer from depression. If we assume that there’s a significant causal relation between anti-FAE and depression, it would indicate that it may be the case that, not only can the error be avoided by either inclination or calm inference, but also that abandoning the error is correlated with anhedonism and ego-destruction. This would mean that the FAE is not just a byproduct, but is also motivated by necessity.
2 Manfred Gabriel Jul 27th, 2006 at 2:00 pm

Interesting - I know little about the psychological background. What I find fascinating are the obvious links to morality and the criminal law. In the criminal law, there is a constant tension between the action (the crime) and the causes for action. There are obvious ways in which motivation is relevant, like provocation, self-defense, and premeditation. Then there are subtle and controversial ways in which the defendants past and formative experiences figure into sentencing. If you recall the labelling approach, which argued that criminals are just people labelled by society as deviant, you can see an attempt to redefine an act as a consequence. Our view of personal responsibility will shift, of course, if we think of “crimes” as an exercise of free will, or as reflexive responses to society’s treatment of the “criminal.”
3 Benjamin S. Nelson Jul 28th, 2006 at 12:43 pm

IIRC my soc textbook, the labelling approach to deviance wasn’t just methodological (i.e., saying that labelling defines the deviant, and hence automatically creates it just by the act of labelling), but also was concerned with the deviance amplifying process, where the labelee would change their behavior to satisfy the new role they’d been thrust into. But I might be misreading you, or misremembering the text.

Of course, with the agency/responsibility remarks, you’ve raised a powerful issue, and which compels our attention in the same way that an oncoming freight train compels the attention of a cow on the tracks. It is an issue so powerful that ethicists and “free will” philosophers of mind lose sleep over it; that it motivates entire disciplines (sociology) and marginalizes other disciplines (sociobiology); and that it makes folk psychology politically expedient to manipulate both inside and outside the law. Movement ideologies, like what’s being (erroneously) called American “conservatism”, are strongly associated with an ethos of strong personal responsibility, which may or may not be associated with a habitus of free will (depends on who you talk to).

The entire question, of course, maps onto the nature/nurture debates. I just read Steven Pinker’s “The Blank Slate”, which is a prodigious and monumental effort in trying to make sense of the whole thing by downplaying the nurture side (despite a number of dubious claims he makes). Now I’m researching a Weberian scholar named “Benjamin N. Nelson” (1911-1977) who makes opposite claims.

There’s a lot to be said there, and all of it is compelling. But the most important thing I think is to keep in mind that there’s no necessary 1:1 philosophical connection between claims of responsibility and claims about free will and social causes. For instance, you can be a total behaviorist up and down, totally deny any semblance of free will (and complex conscious activity at all, for that matter) and yet still insist upon societal mechanisms of punishment and responsibility.
4 Manfred Gabriel Jul 28th, 2006 at 5:33 pm

Benjamin N. Nelson? No kidding!

The amplifying process is how a cause (a crime) gets redefined as a consequence (of labelling [incl. amplifycation]), so that labelling of deviance by society becomes the cause of “crime.” I think we are saying the same thing, really.

I don’t think one can believe in law as a social enterprise without also believing in free will, or at least accepting the fiction of free will (which I think resembles your last point).

Fun stuff.
5 Ben Samuel Nelson Jul 28th, 2006 at 8:54 pm

Yeah, it’s kind of spooky how Benjamin N Nelson’s research interests are identical to my own (or at least, are very similar). No doubt the Freakonomists Steven Levitt and Stephen Dubner would find it anomalous.

(I should correct myself, I just checked my soc text and it tells me that the “deviance amplifying process”, to use soc jargon, is when people intentionally do the opposite of what they’re socialized to do, a kind of reverse psychology. That’s not the same as the labelling theory which you’re discussing.)

I believe the labelling theory is plausible. After a fashion, the Zimbardo / Stanford experiments seem to lend some support to the possibility. It would be interesting to hear what the consensus is among social psychologists, if any. (I’m doubtful; my impressions so far are that social psychology as a discipline is clique-driven.)