Kahan and Braman on Self-Defense
posted by Dave Hoffman
Dan Kahan (Yale) and our former guest Don Braman (GW) have posted The Self-Defensive Cognition of Self-Defense on SSRN. From the abstract:
Why do certain self-defense cases – ones, e.g., involving battered women who kill their sleeping abusers, or beleaguered commuters who shoot panhandling minority teens – provoke intense political conflict? The conventional and seemingly obvious answer is that people judge such cases in a politically partisan fashion. This paper, however, suggests a more complicated explanation. Social psychologists have shown that individuals resolve factual ambiguities in a manner supportive of their defining values, both to minimize dissonance and to protect their connection to others who share their commitments. This form of self-defensive cognition, it is submitted, shapes individuals’ perceptions of violent interactions between parties seen to be complying with or defying contested social norms. As a result, even individuals who are trying to decide such cases based on honest and politically impartial assessments of the facts polarize along cultural lines. The paper presents the results of an original empirical study (N = 1500) that supports this hypothesis. It also explores the normative significance of this account of the origins of political conflict over self-defense cases and how such conflict can be mitigated.
This is a terrific paper, part of the larger Cultural Cognition Project hosted by Yale Law.* A question I have, perhaps worth thinking about, is whether cultural assessment of reasonableness decisions has implications not just for how we think about risk and socially contested verdicts, but about perceptions of culpability as well. Thus imagine that an individual who sees the world through hierarchical lenses were charged with murder and asserted a self-defense justification. To the extent that Braman and Kahan’s work shows that such individuals are less likely to credit such justifications in certain contexts (e.g., for battered women) maybe we might have a new way to evaluate the wrongdoer’s state of mind and thus moral culpability?
Another issue raised by the paper is the power of deliberation. The authors suggest some reasons to doubt that jury deliberation will cure culturally based perceptions of culpability and blame. I doubt their doubts,** but think that the point is really difficult to support empirically, because of researchers’ continued inability to do good field work on actual juries.
In any event, the paper is great stuff, sure to influence the hot self-defense debate between the “new normativists” and their adversaries. Give it a read.
*Disclosure: I just signed up to be part of the revolution.
** There should be a word for doubting others doubts. Honors to the reader who comes up with one first.
September 12, 2007 at 8:48 pm
Posted in: Criminal Law
Print This Post
Responses (5)
Mark Seecof - September 13, 2007 at 1:33 pm
That paper would be a heck of a lot more credible if it didn’t lead off (abstract, first paragraph, and first footnote) with the falsehood that Bernard Goetz shot “panhandling minority teens.” In fact, he shot adult robbers. Those bulky young men, all wanted criminals and confessed thieves, surrounded and menaced Goetz, then demanded money from him. Furthermore, their demand for “five dollars” cannot be understood as a limit to their desires, but rather, as a demand that their victim produce his wallet so they can take it away from him. Even the word “minority” is misleading– it is meant to suggest that the robbers were somehow members of a powerless or oppressed group. In fact, in that subway car on that day, Goetz was the “minority,” outnumbered four-to-one by a gang of robbers. The robbers were the ones violently oppressing a “minority” victim.
Donald Braman - September 13, 2007 at 10:17 pm
Mark’s post raises precisely paper’s central point: that individuals’ cultural commitments orient them towards divergent characterizations of the facts. Well done!
Alternative Sanction - September 13, 2007 at 10:51 pm
Mark, you see, that is precisely the point of this paper. You read facts differently because of your values. You might think that the paper is stupid and unoriginal and rehashes obvious points that every first year law student knows and dresses it up in the trendy language of empirical studies. But, that would be a perception that you arrived at because of your self-defense cognition, and the authors who presumably think that what they are doing is pretty cool are also bound to think that way because of their own self-defensive cognition, which leads the authors to overestimate the value of their work. And if you disagree with the authors about the value of their work, that, too, is because of your self-defensive cognition. And if the authors disagree with your disagreement, that, too, is a result of their self-defensive cognition and so on and so forth. But this is genuine progress nevertheless. Why? Because the authors are not out to mislead anyone, and it is not, as the “conventional and seemingly obvious answer” has it, a “politically partisan” maneuver. This is done all in good faith at the subconscious level because the authors need to convince themselves that their work is good in order to “minimize dissonance and protect their connection to others who share their commitments”– like their co-authors and whoever wants to sign on to the project.
Donald Braman - September 14, 2007 at 2:41 pm
AS, thanks for that very funny skewering. I’m on my fifth reading and I still have to laugh – both at the implication of the clever name about the efficacy of shaming and at the shaming zingers throughout. Let me see if I can collect my humbled and dart-riddled self enough to muster a response:
First, AS’s parody makes me see that I may have come off as not taking Mark seriously – that’s not at all the case. Take Mark’s point about credibility. Mark is right — I couldn’t agree more — that our credibility suffers when we characterize the Goetz shooting in the way we do, and that we reveal our own biases though our characterization. But if we adopt Mark’s version (Goetz shoots adult thugs in self-defense), we lose credibility as well. So what to do? Mark’s comment provides us with good reason to work harder to come up with an alternative phrasing that won’t alienate readers on either side. (And, just be absolutely clear, I *don’t* mean that in some weird or dismissive pomo way – I am *genuinely* thankful, Mark!)
And as AS suggests, when anyone says that it’s values driving the debate, there is a danger of lapsing into pomo mumbo jumbo about all perspectives being equally valid, and let a thousand disagreements bloom. But again, Dan & I couldn’t be further from that position. If you haven’t been alienated by our characterization of Goetz and manage to make it all the way to the end of the introduction (give it another shot, AS — I know you can do it!), you’ll see that we take this issue very seriously.
The natural question is what to do about the fact that people’s values cause them to disagree about the facts. Joke all you want — we enjoy the irony of using facts to prove our point — but the answer can’t be that the insight is so obvious to everyone as to be pointless. The inspiration for our paper is Kelman’s excellent piece in which he notes that, in fact, first year law students insist on factualizing debates even when it is revealed that the dispute is values-based. We come up with a different diagnosis and a different prescription from Kelman, but agree with him about the strangely powerful impulse to push values debates into factual terms.
If you can bear to make it that far, AS, have a look at the end of the paper and see if you don’t think we have a point there about respect & charity.
DG - September 17, 2007 at 2:01 pm
“A question I have, perhaps worth thinking about, is whether cultural assessment of reasonableness decisions has implications not just for how we think about risk and socially contested verdicts, but about perceptions of culpability as well.”
This is a fascinating project and a very interesting question. I discuss this precise issue in the context of transitional justice debates here: 74 FORD. L. REV. 2621 (also available at http://ssrn.com/abstract=840045). My claim is that abusive regimes are defined by a constellation of factors, including a normative ontology, social teleology, black letter law, and official state practice, which together lead many abusers to believe that their complicity in state-sponsored abuse is right, necessary, or at least not illegal. I conclude that, out of respect for legality, transitional regimes should forgo criminal prosecutions against most participants in pre-transitional abuses and I propose an affirmative excuse, which individual transitions can elaborate and apply through truth commissions.
I am not prepared to make a similar argument in the stable state context, but some of the tools and analysis developed in this paper may be of some use in thinking through the significance of Cultural Cognition Project data to criminal culpability.
Leave a Reply