Not as Bad as Painted? Legal Expertise, Intentionality Ascription, and Outcome Effects Revisited

AbstractPrevious research by Kneer and Bourgeois-Gironde (2017) suggests that legal experts are susceptible to the “severity effect” – they ascribe a higher level of intentionality for actions if they lead to very bad side-effects than when they have somewhat bad side-effects. These results are potentially problematic for the legal system because ascriptions of intentionality in the law explicitly depend on the evaluation of mental states of the agent (mens rea), not on the badness of the outcomes she caused. In this paper, we provide and test an alternative explanation of the “severity effect” that has no troubling implications for the law. We suggest that it may be a subtype of a more general “side-effect effect” (Knobe, 2003), which is compatible with certain legal criteria of ascribing intentionality.

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