Legal Theory Blog

Two by Hurley
Two new papers by Susan Hurley:

Bypassing Conscious Control: Media Violence, Imitation, and Freedom of Speech (Forthcoming in Does Consciousness Cause Behavior? An Investigation of the Nature of Volition, ed. S. Pockett, W. Banks, and S. Gallagher, MIT Press). Here is a taste from near the start:
Why does it matter whether and how individuals consciously control their behavior? It matters for many reasons. Here I focus on concerns about social influences of which agents are typically unaware on aggressive behavior.

First, I survey research about the influence of viewing media violence on aggressive behavior. The consensus among researchers is that there is indeed a robust causal influence here.

Second, I explain why, in the context of work in cognitive science and neuroscience on imitation, this influence is not surprising. Indeed, it would have been surprising if aggressive behavior had been immune from general imitative influences. Imitation is a topic of intense contemporary scientific interest and of great importance for understanding what is distinctive about human minds. Recent advances in understanding imitation and related processes shed light on the mechanisms and functions that may underlie the influence of media violence on aggressive behavior. Human beings have a tendency to imitate and assimilate observed or represented behavior, which operates at various levels and is often automatic and unconscious. Automatic imitative influences of which individuals are unaware can compromise their autonomy.

Third, I consider how this bears on the liberal principle of freedom of speech. This principle goes beyond the general liberal principle of freedom of action so long as action does not harm others; speech is given additional, special protection from interference, even when it does harm others. Why? Answers often invoke autonomy. In particular, speech is often assumed to engage autonomous deliberative processes in hearers by which they consciously control their responses to speech. Social influences that bypass autonomy are implicitly assumed to be negligible. But what if they aren’t? Empirical work on imitation is relevant to both the likely effects of speech and to the character of the processes by which its effects are brought about.

Choice and Incentive Inequality (forthcoming in Festschrift for Gerald Cohen, ed. Christine Sypnowich, forthcoming OUP 2005). Here is a morsel from near the end:

In my view, the choice exemption is not the right way to give responsibility a role in justice. That is, we should not use responsible choice as a way of answering the question of what goods distributive justice is concerned with the distribution of. Moreover, I think it is only when we set aside the choice exemption that we can get issues about the relationships among choice, incentives and inequality into clear focus. However, responsibility still has important roles to play in justice, in the absence of a choice exemption. In particular, responsibility for results, or lack thereof, generates expectations that psychologically and evaluatively more basic than conclusions about desert or entitlement. Such expectations function among other things as parameters on possible collective levels of incentive seeking against which a maximin principle of justice operates (JLK, ch. 8, 9, 10).

I am often asked to give a simple statement of my own positive views, so I will take the opportunity to do so here somewhat gratuitously, by way of conclusion. On the ‘what’ question, my own view is a form of perfectionism. Justice is concerned with a list of objective goods, including health and education, and including also autonomy, which presupposes responsibility (although responsibility is not sufficient for autonomy). Since autonomy has central role as a good (in the way I explain in Natural Reasons, ch. 15), my perfectionism is a liberal perfectionism. On the ‘how’ question: I have given an argument for a maximin principle, and speculated about the close formal relationships between priority and sufficiency principles (JLK, ch. 10). My preferred position lies in the space between priority and sufficiency views.