Peter Reiner

My aim is to understand what it means when we ask people to have more empathy. ‘More’ refers to an increment, but what this increment is has yet to be specified. To some people it may be sufficient to be more empathetic to their family and friends. To others, more empathy means connecting and understanding strangers or people who are different from ourselves. Underpinning these tendencies are biases that draw us towards those individuals with whom we can easily identify or are part of the same in-group. This is something to consider when choosing instruments to measure empathy, most of which are self-reported measures. There are two new scales that seem to capture the role of identity and its relationship to empathy in different but important ways: The Moral Expansiveness Scale (Crimston et al., 2016) and the Empathy Gradient Questionnaire (Hollar, 2017). This is an emerging area of research that uses scales that systematize the closeness of an individual (target of empathy) to the empathizer. Importantly, these discussions of what is essentially empathy enhancement inevitably leads to normative questions such as: ‘What is an appropriate level of empathy?’ or more generally ‘What is an appropriate amount of moral concern?’ In response, I frame the normative side of the discussion within a virtue ethics perspective to shift the focus away from ‘how much’ empathy to the quality of empathy. The question of an ideal is at the heart of a virtue ethics approach: how to navigate one’s moral circle in the healthiest way that encourages flourishing for ourselves and the objects of our moral concern. Continuing to understand and promote empathy means we must also understand what it means to be more or less empathetic.

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In the past decade, a proliferation of discussion at the intersection of law and neuroscience has highlighted the significance of public attitudes toward punishment, with claims frequently made regarding the popularity or prospects of retributivism – the position in punishment theory that privileges desert as the basis of punitive action. However, no well-validated instrument for measuring endorsement of retribution has been available to ground the discussion in empirical data, and little attention has been paid to the possibility that an individual’s views on retributivism may interact with judgments about intention and knowledge underwriting the imputation of mens rea (“guilty mind”). In Chapter 1, I construct and validate a new Endorsement of Retribution scale. In Chapter 2, I detail the design and results of a study that employs the new scale, investigating the relationship between participants’ Endorsement of Retribution scores and their likelihood of judging that a hypothetical defendant’s actions met a specific standard of guilt. The data from this study provided no support for the hypothesis that Endorsement of Retribution score is associated with an increased tendency to convict for legally irrelevant reasons. Moreover, highly retributive respondents were no more likely than other respondents to vote guilty for any reason, legally relevant or not. However, respondents were vastly more likely to convict an ostensibly nefarious character than an ostensibly morally upstanding one, regardless of retributive inclinations. These results highlight a previously acknowledged need to address the problem of cognitive biases in the reasoning that jurors are called upon to perform, while also serving as a reminder that the causal roots of such biases defy simple single-factor explanations, and partly dispelling the worry that attitudes about punishment constitute a major contributor in this regard.

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