Tuesday, April 18, 2006

Situationalism and virtue: are there any good guys?

The Model Penal Code, Section 1.02(1), states that its purposes are to (a) "prevent conduct that...threatens harm to individual or public interests," and to (b) "subject to public control persons whose conduct indicates that they are disposed to commit crimes."

This already incorporates some very strong assumptions about human nature and the capabilities of the law. The clause 1.02(1)(b) assumes that people reveal their character through conduct, and (a) assumes that the law can influence the overall situatedness of a decision, its topography of daily decisional utilities, profoundly enough to "prevent conduct" and shape action.

The idea that people have character--that there are virtuous folks and vicious folks and that you can predict based on past observations what someone might do in the future--has been under attack (at least in its stronger forms) for a while from social psychologists. Characterism is derided as committing the "fundamental attribution error": the mistake of assuming that people have strong dispositions that explain their behavior, rather than being largely guided by the situation they (luckily or unluckily) find themselves in. The most famous example of this is the Milgram experiment, in which subjects administered potentially lethal electric shocks to victims in the name of science. The average person in an authoritarian or heirarchical situation switches from his everyday "autonomic" state to acting in an "agentic" state, accepting commands and showing few stable character traits. Evolutionarily, agentic states posed fewer threats to heirarchies than autonomic states, allowing more effective wielding of genic power.

The idea of characterism at the heart of 1.02(1) is implemented in a dozen ways of the Model Penal Code and in criminal law in general: in the doctrine of excuse, and in entrapment, for example. On one definition (Spunaugle v. State, 946 P.2d 246), a crime is excused if a person of ordinary firmness would have also been unable to resist the temptation or duress. This might seem situational; but on reflection it effectively sets a standard level of "virtue" and punishes those people's actions--and only those--which do not rise to that level of character. Similarly, entrapment is at first glance situational: it is a valid defense to say that the police created a situation in which I committed a crime. But, again, the affirmative defense of entrapment requires that the defendant show that he did not have a personality propensity to commit the crime (People v. Calvano, 30 N.Y.2d 199), and so the government can introduce past behavior as a guide to character. [Even after this, certain situational elements remain: if a defendant would normally not have encountered the opportunity to commit the crime (say an undercover cop sells crack to an Amish youth), but the defendant was predisposed to the crime, it is still entrapment. Thus entrapment is described in U.S. v. Hollingsworth, 27 F.3d 1196, as "positional as well as dispositional." But positional entrapment is a hard defense to pull off, as Jacobson v. U.S., 503 U.S. 540, shows: "ready commission of the criminal act amply demonstrates the defendant's predisposition."]

On the situationalist account, the dispositionalism of 1.02(b) is idle hope based on bad folk psychology, and so we are left with 1.02(a), and the awesome need for the law to fundamentally transform all situations into "good" situations, to do the work that virtue and resistance to temptation cannot. The law has only a first order, deterrent effect--enacting an individual threat to each player at each instant--and no second-order effects of building good citizens through a healthy moral ecology.

The consequences of a successful attack on character traits is, of course, the end of the renaissance of virtue ethics, as gleefully predicted by Harman. On the other hand, many have argued that psychology experiments are much like on-screen sex: a version of the way the world works that on first thought seems idealized, and on second thought seems barren of the complications and surprises of reality. Peter Vranas has noted some difficulties in John Doris's (Lack of Character) definitions of what a "situation" is. Pro-situationalism: on the role of situationalism in poverty and the "Republic of Despair," see Leonard Long's Optimum Poverty, Character, and the Non-Relevance of Poverty Law, 47 Rutgers L. Rev. 693. Anti-situationalism: on the normative structure of criminal law and its relation to situationalism, see Husak's Crimes outside the core, 39 Tulsa L. Rev. 755.

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