Epistemic Crimes and Mens Rea

Bas van Fraassen once characterized the difference between English and Prussian conceptions of law this way: in the former, everything not explicitly prohibited is permissible; in the latter, everything no explicitly permitted is prohibited. Not likely to be quite accurate, but instructive nonetheless.

I was thinking about this idea with respect to theories of rationality and irrationality, in the context of some work I’ve been doing on the concept of mens rea. Suppose you prefer an English-style theory of rationality and you conceive of irrationality analogous to the way you conceive of criminal behavior: there is no crime without a guilty mind. Then we should expect legal theory on the concept of mens rea to be relevant to the nature of epistemic principles.

If so, the question is what level of mens rea involvement is requirement for an epistemic crime.
The analogy with the law will thus require us to distinguish between the mental element (mens rea) and the objective element (actus reus). For example, murder and mere homicide share the same actus reus but differ in terms of mens rea requirements. Mens rea requirements run, in order of strength, from the intentional to the known to the reckless to the negligent. Below these are strict liability laws that involve no mens rea requirement at all.

So: what is the epistemic analogue of actus reus? I’m not sure, but suppose we start with the suggestion that it is believing the false or the likely to be false. Doing so turns the initial focus on our theory away from irrational true beliefs and irrational likely-to-be-true beliefs, but that’s OK initially so long as we take a final step and generalize our results in the other area to these areas as well.

If we think of epistemic laws in terms of strict liability laws, we get the view that all false beliefs are irrational, or that all likely to be false beliefs are irrational. Why? Because not even questions of negligence or recklessness enter into the story of whether an epistemic crime has been committed. The central difference between negligence and recklessness concerns first whether the risks incurred were known to the agent and disregarded (recklessness) or whether such risks would have been known to a reasonable person in the situation in question even though they weren’t known to the agent (negligence).

Hard-core externalists might find such a position attractive, but I don’t and won’t bother to try to argue here for my distaste. The strongest requirements look equally puzzling, however. To believe that p intending to believe it in spite of its falsity or in spite of its strong likelihood of falsity are obviously irrational, but it is hard to hold out such a strong intentionality requirement on irrational belief. To believe that p knowing that it is false is hard to envision as possible, and to believe that p knowing that it is likely to be false hardly seems necessary for irrational belief (though, with some refinements, it may be sufficient for irrational belief).

So, if we are looking for minimal requirements on irrational belief, when the belief is false or likely to be false, it looks like either recklessness or negligence is all that’s left. The negligence standard, however, seems inadequately perspectival: suppose I don’t know of the risks of error and so don’t take them into account; how is it relevant that reasonable people, in general, would know? Of course, we can trivialize the requirement by quantifying over all reasonable people, and then the fact that I don’t know shows that I’m irrational (in virtue of this very lack of knowledge), and it’s a bit hard to argue that even irrational viewpoints must be allowed to help define the perspective from which rationality derives. But it isn’t a very plausible interpretation of the legal notion of a reasonable person to require quantification over all reasonable people, so the perspectival concern remains.

By elimination, we are left with the recklessness standard. Elimination arguments are generally quite weak, because they work only to the extent that all possibilities are covered by the original categories themselves, and here there is no special reason to think that the various levels of mens rea requirements are exhaustive in this way. But the exercise is still interesting and perhaps instructive: maybe you have to know and disregard the risk of error in order to be irrational. The hard work to be done, under this rubric, would be to say what levels of risk can’t be disregarded in this way and what the concept of risk involves–is it chance of error, subjective probability of error, etc.


Epistemic Crimes and Mens Rea — 4 Comments

  1. Hi Jon,

    You say

    “The hard work to be done, under this rubric, would be to say what levels of risk can’t be disregarded in this way and what the concept of risk involves–is it chance of error, subjective probability of error, etc.”

    How about:

    A level of risk such that, given the subject’s preferences and choice situation, it is not rational for the subject to act as if the belief is true?

  2. Jeremy, you pragmatic encroachers are so unsubtle! Actually, that’s exactly where one ought to start thinking about the issue. I don’t understand why you use the “given” clause though, but maybe I misunderstand. Is this different?:
    A level of risk R is incompatible with rational belief only if it is not rational for the person in question to act as if the claim in question is true.

  3. Jon,

    I think this is an interesting idea. I’ve been toying around with something like this in a few papers on epistemic justification and rationality.

    The account I’ve been developing is similar in certain respects to the one that seems to be suggested by your remarks above. Suppose you start from the assumption that the epistemic analogue of actus reus is something a belief that contravenes the norm:
    T: You should not believe p unless p is true.

    In criticizing a belief, we can then say that either the particular belief can be criticized for having contravened this norm or because it is held in such a way as to indicate a ‘guilty mind’ (i.e., the subject could not have reasonably assumed that her belief regarding p would conform to T). If we think of a justification as a kind of defense that negates criticism and think that all criticism of the belief would assume one of these two forms, we get the result that a belief is justified iff it is faultlessly and faithfully held. If a defense of a belief negates only the charge that the subject could not have reasonably expected to have conformed to T, we have an excuse without a full justification of the belief. Such a defense would affirm that the subject was epistemically rational, but not that the subject managed to avoid believing against an undefeated reason. So, we’d have to distinguish S’s belief being justified from S being rational in holding that belief. (Derek Parfit, Michael Smith, and John Broome seem to draw these sorts of distinctions between conforming to normative reasons and being rational.) I don’t think it is a big problem to draw this distinction. It seems in epistemic evaluation we want to distinguish between those failures for which you are responsible (i.e., neglecting the evidence, not reasoning carefully) and those failures that arise because you have been failed by something that is supposed to put you in touch with how things are (i.e., perception, memory, testimony) and we can say that while all failures are failures to believe as the reasons would have you, only a subset of these are failures of reason in the strict sense and failures that indicate that the subject is irrational.

    I take it that you’d part ways in thinking of a justification as something that speaks only to the elements of mens rea or something like that? That would allow you to preserve the connection between S’s being rational in believing p and S’s belief that p being justified.

    There is a pretty interesting literature on the question as to whether the notion of justified action ought to be understood in terms of an action that conforms to the law or just an action performed by an agent without a guilty mind. The debates parallel pretty closely the internalism/externalism debates in epistemology. I suppose that is not surprising. One interesting difference between the literatures is worth noting. In epistemology it seems you have a heck of a time defending theories inconsistent with the intuition that cases of non-culpable error are cases of justified belief rather than merely excusable belief. I have a stack of referee reports to attest to that fact. There is some empirical research that suggests that the folk notion of justified action is more externalist than epistemologists often claim the notion of justified belief is.

  4. Hi Clayton, yes, I was thinking of some of our past conversations when I wrote this up. One difference, I think, between the legal context and the epistemic is that the law, perhaps because of privacy rights, doesn’t intrude much when there is a guilty mind, however understood, but no external feature. That will be part of the story, I think, as to why, if we try to use some of the mens rea ideas in the theory of rationality, we’ll need to generalize to the point that there is no actus reus element required for epistemic crimes.

    It’s an interesting question whether the same would hold for rational action, and I’m not sure what to think about that context.

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