Mens Rea and the Psychology of Pain:
From The Economist:
If someone accidentally steps on your toe, it hurts. But does it hurt more if you think he did it deliberately? That, in essence, is the question Kurt Gray and Daniel Wegner of Harvard University asked in a study they have just published in Psychological Science. And their answer is that it probably does.
A version of the paper is available here.
As I recall from a different experiment, the subjective degree of pain is larger if a male administers it than a female. The mind is a strange thing ...
12.22.2008 5:12pm
Anderson (mail):
Anger is painful.
12.22.2008 5:13pm
Tom R (mail):
Err... will somebody hurry up and quote Holmes about kicking a dog?!!
12.22.2008 5:16pm
Yo, don't kick that dawg, Holmes!
12.22.2008 5:20pm
Anderson (mail):
Anger may be defined as an impulse, accompanied by pain, to a conspicuous revenge for a conspicuous slight directed without justification towards what concerns oneself or towards what concerns one's friends.

Aristotle, Rhetoric, 2.2.
12.22.2008 5:21pm
Was this ever in question? Things that don't even really hurt, hurt when administered deliberately and in anger. I thought this was obvious.
12.22.2008 5:27pm
Sarcastro (www):
Does it hurt less if the person who does it suffers punishment afterwards?
12.22.2008 5:30pm
Hmmm, the quantification of pain... perhaps we'll soon be able to tell if this really does hurt me more than it hurts you.

I can imagine the future of insult contests now, where we measure the true sting of your witty repartee.
12.22.2008 5:33pm
M (mail):
My Sister: "Stop! That hurt!"
Me: "It didn't hurt. I barely touched you."
My Sister: "It did hurt- my feelings."
12.22.2008 5:36pm
Lighten up Kansas:
No, Sarcastro, but the schadenfreude is a delicious panacea as well.
12.22.2008 5:38pm
Houston Lawyer:
Yes, Sarcastro, especially if the punishment is swift and disproportionate
12.22.2008 5:51pm
M's Sister: "See, you made me register a 5.4 on my Pain-O-Meter(TM), I'm telling Mom!"

That would make picking on siblings a lot like The Price is Right: try to get as much pain as possible without going over.
12.22.2008 5:57pm
Bruce McCullough (mail):
Let's not forget that Psychological Science is the journal that published a paper claiming that baseball players with a first or last initial "K" strike out more often than other players. The theory is that since K is the symbol for strikeout in a scorer's sheet, players with the initial K will be less averse to striking out (it's their initial -- how can they dislike getting a K?) and will strike out more than players whose initial is not K.

So if you want to believe everything you read....
12.22.2008 6:13pm
Edward A. Hoffman (mail):
I see I'm not the first one to think of this, though I may be the first who also has the book handy:

"[E]ven a dog distinguishes between being stumbled over and being kicked."

-- Oliver Wendell Holmes, Jr., The Common Law, p. 3 (Little, Brown 1881).
12.22.2008 6:36pm
Duncan (mail):
This makes a certain amount of sense. Primates probably punish other primates for transgressions based on the degree of discomfort they are subject to, without reasoning much about appropriate punishments. It makes sense to punish intentional transgressions more than unintentional ones.

This aspect of primate behavior is preserved in our legal system, actually. It is the difference between tort law and criminal law.
12.22.2008 6:50pm
LM (mail):
Are you also more likely to think he did it deliberately if it hurts more? That could explain a lot of what we see on these threads. (h/t: Ken Levine)
12.22.2008 6:53pm
Edward A. Hoffman (mail):
Duncan wrote:
It makes sense to punish intentional transgressions more than unintentional ones.

This aspect of primate behavior is preserved in our legal system, actually. It is the difference between tort law and criminal law.
Not exactly. Tort law distinguishes between intentional and negligent conduct and treats the former more harshly than the latter. In particular, it allows punitive damages for various intentional torts but not for most negligent torts.

Criminal law is focused almost entirely on intentional conduct, though it does cover some instances of gross negligence. It thus overlaps more with criminal law than Duncan's post suggests.
12.22.2008 6:57pm
Duncan (mail):
Edward A. Hoffman: "Not exactly."

Well, I'm certainly not suggesting that the analogy is _exact_. I would actually be surprised if some aspect of primate behavior were so exactly mirrored in the common law that no objections could be raised toward the analogy.

It is still a striking similarity, and one that I think is evidence that our code of laws is basically based on the (necessary) behaviors of primates who live in tribes (because our theories of justice and fairness are basically innate). What would the common law look like if it had been formulated by beings descended from cats? It's a sophomoric question, but...
12.22.2008 7:07pm
Edward A. Hoffman (mail):

I think you missed my point. That I said "not exactly" does imply that you were almost exactly right. Your post implied that tort law covers only unintentional conduct and that the conduct it addresses does not overlap with that addressed by criminal law. Both of these premises are incorrect.

Cat law would be very weird indeed, since cats (aside from lions and perhaps a few others) are not social creatures and thus don't need many (any?) rules to govern their social interactions.
12.22.2008 7:15pm
More importantly . . .:
I always thought that "punitives" were actually compensatory for the additonal injury inflicted by knowing that someone had the arrogance to intentionally violate your rights. Seems like there was a reason for that.
12.22.2008 7:19pm
Edward A. Hoffman (mail):
Punitive damages are not compensatory. That's why there is a separate category for compensatory damages.

Compensatory damages, by definition, are supposed to compensate the plaintiff for her injuries. Punitive damages are supposed to punish the defendant in order to deter him from engaging in similar conduct in the future. One of the factors to be weighed when imposing punitive damages is the wealth of the defendant, since an amount sufficient make an average citizen feel the sting would not have the same effect on a wealthy defendant. Poor defendants, however, may be able to escape punitives entirely even if their conduct would warrant such damages from a wealthier defendant.

None of this would make sense if the purpose of the award was to compensate the victim for the intentional nature of the conduct.
12.22.2008 7:26pm
Duncan (mail):
Hmm- I appreciate your attempt to amend my post- here's my attempt at amending yours.

I suggested an evolutionary mechanism that treats (or rather, if we are being precise, makes organisms in that society treat) intentional infliction of pain more seriously than unintentional infliction of pain, within primate societies. I hope I don't have to explain why this makes sense from an evolutionary point of view...

That civil and criminal law overlap actually supports my conjecture... if something hurts badly enough that you stop caring about motives and you just _punish_- well that is where tort law overlaps criminal law.

But, as a general rule, torts can be distinguished from crimes by intent. That that is not _always_ the rule is not relevant. It is generally the case.
12.22.2008 7:33pm
Duncan (mail):
Also, you're quite wrong if you think that cats don't exhibit social behaviors- they live in colonies in some cases, and _any_ colony of organisms must be governed by rules to continue to exist. But they are far less tribal than primates, and that is why I chose them as a (rather sophomoric) example.
12.22.2008 7:39pm
Gaius Obvious (mail):
A related question is "Why can you not tickle yourself?" Answering that will get you a long way towards understanding the perception of the increased sensation of intentional pain as intentionally tickling oneself does nothing.
12.22.2008 7:48pm
Duncan (mail):
Gaius: A related question is "Why can you not tickle yourself?"

Can you offer- well, not even evidence, but.. some theory that relates what you said to the question? I am failing to see it.
12.22.2008 7:52pm
Edward A. Hoffman (mail):
Duncan wrote:
as a general rule, torts can be distinguished from crimes by intent. That that is not _always_ the rule is not relevant. It is generally the case.
No, it is not generally the case. That was my point. Indeed, it is generally not the case.

Almost every crime is also actionable as a tort. Very few crimes can be distinguished from torts at all, let alone on the basis of intent. Actions which qualify as the crime of theft will almost always also qualify as the tort of conversion. Those which qualify as the crime of burglary will almost always qualify as the tort of trespass (often coupled with conversion). Those which qualify as the crimes of assault and/or battery will also qualify as the torts of the same name.

As a general rule, negligent torts can be distinguished from crimes by intent. Intentional torts cannot. Your statement goes astray because it implies both that nearly all crimes involve intentional rather than negligent actions (which is true) and that nearly all torts involve negligent rather than intentional actions (which is false).
12.22.2008 8:04pm
LM (mail):

I think the defining difference is that tort law vindicates rights of plaintiffs harmed by defendants, while criminal law punishes behavior by defendants that's more broadly socially unacceptable. Both hold defendants responsible for acts committed in the full range of mental states, from intentional crimes and torts to criminal and civil strict liability. For criminal law, for example, think statutory rape.
12.22.2008 8:11pm
Duncan (mail):
OK, first that every crime is actionable as as tort is not relevant to what I was saying. This is like lizards and reptiles...

But I don't care what your background is if you say "Very few crimes can be distinguished from torts", unless you qualify that statement heavily. Are you a prosecutor? I kind of think that you are and that you shouldn't be. Of course some people would like to treat every lapse as a crime... and of course those people would fail to see the difference between a tort and a crime.

The rest of your screed seems to confirm that. God help us if it were actually difficult to distinguish torts from crimes, generally...

Intent is fundamental. It is possible to commit a crime without meaning to but.. it ought to be very hard to do so. On the other hand it is easy to damage other primates so that you owe them compensation. That is why we have tort law.
12.22.2008 8:50pm
Duncan (mail):
Cause, obviously... many torts can be distinguished from crimes.
12.22.2008 8:51pm
Edward A. Hoffman (mail):
Duncan, you may be right that this is like lizards and reptiles, but all I'm saying is that lizards are reptiles, which is correct. You're the one claiming reptiles are lizards, which is not correct.

I never said most torts are crimes. What I said was that almost all crimes are torts. Your argument from the beginning has been that the difference between intentional and unintentional conduct is analogous to the difference between crimes and torts, and I've been arguing that you're mistaken because crimes generally are torts.

The category of torts is broader than the category of crimes, much as the category of reptiles is broader than the category of lizards. But your initial post was like saying that lizards are distinct from reptiles -- and that the distinction lay in a particular aspect of lizard-ness. All I have been doing is trying to refute that argument.

And since you bring it up, I am not now and never have been a prosecutor. In fact, I have handled many criminal appeals on behalf of defendants. Your reading of me is as backwards as your reading of my argument.
12.22.2008 8:59pm
AndrewK (mail):
I'm reminded of the passage in Nietzsche from the Genealogy of Morals where he comments that as compared with the agony of one hysterical woman of culture tossing and turning at night, all the pain of animals tortured for science is negligible.

...and the broader point that the intensity of pain is partly an evolutionary / social construct and comparative. This sort of experiment seems to highlight the role of interpretation in the whole enterprise.

I would take this less as an indication that we can now "reduce" punitive damages into compensatory damages than an indication that we need to rethink whether "cruel and unusual" is a meaningful phrase.
12.22.2008 9:00pm
Duncan (mail):
Well, I might have been hasty in accusing you of being a prosecutor, but just as some people have trouble distinguishing between torts and crimes I have trouble distinguishing between prosecutors and evil/stupidity. So when you say something dumb...

Anyway you have entirely missed my point about primates... and for all the responses to my comment no one has actually responded to it.
12.22.2008 9:22pm
Blar (mail) (www):
Sarcastro - apparently it depends on who is doing the punishing.
12.22.2008 9:59pm
LM (mail):

Anyway you have entirely missed my point about primates... and for all the responses to my comment no one has actually responded to it.

Be careful what you ask for.

You seem to have misunderstand what the study found. You said:

Primates probably punish other primates for transgressions based on the degree of discomfort they are subject to, without reasoning much about appropriate punishments.

You suggested this was consistent with the study's findings. But what you're saying is, our pain informs our determination of guilty intention. The study says our perception of guilty intention informs our pain.

12.22.2008 10:31pm
it adds insult to injury.
12.22.2008 11:00pm
Exactly. Being hurt deliberately is in fact two hurts--the physical pain, which is exactly the same when the hurt is deliberate or not, and the implied insult. The person who hurt you said through their actions "You are sufficiently unworthy of my consideration that I'm going to do this to you with premeditation and without feeling guilty," and that is a second injury.
12.23.2008 9:23am
I think we've got three categories now:

1) Deliberate infliction of pain by another person
2) Non-deliberate infliction of pain by another person
3) Pain that just happens, without a person causing it

I would bet that #2 hurts somewhere in between #1 and #3. However, it also seems to be a feature of human nature (or at least our culture) to try to force everything into #1. We all want someone to blame when things go wrong, and we go looking for such a person even when the thing that hurt us is a natural phenomenon. This suggests that a large part of human pain in generated internally.
12.23.2008 9:25am
anomdebus (mail):
And yet, ignorance of the law ("I didn't know your foot was there") is apparently no excuse.

(nb this wet paper bag of an argument is not asking for the easiest way out(it doesn't beg either, but not in the kettle))
12.23.2008 10:24am
So what does a poor dog do who has to choose between a kindly but clumsy human who stumbles over him all the time, and a malicious bastard who deliberately kicks him, but only on rare occasions?
12.23.2008 12:44pm
I'm a little late to the party here, but as long as we're on the topic of articles in The Economist Christmas issue that relate to human nature and the criminal law, did you also see this one about Darwinism?

From the article:

That crime is selfish is hardly news. But the idea that criminal behaviour is an evolved response to circumstances sounds shocking. It calls into question the moral explanation that crime is done by "bad people". Yet that explanation is itself susceptible to Darwinian analysis: evolution probably explains why certain behaviours are deemed worthy of punishment.

The study of the evolutionary roots of crime began with the work of Martin Daly and Margo Wilson, a married couple who work at McMaster University in Canada. They looked at what is usually regarded as the most serious crime of all, murder.

That murderers are usually young men is well known, but Dr Daly and Dr Wilson dug a bit deeper. They discovered that although the murder rate varies from place to place, the pattern does not. Plot the rate against the age of the perpetrator and the peak is the same (see chart). Moreover, the pattern of the victims is similar. They, too, are mostly young men. In the original study, 86% of the victims of male killers aged between 15 and 19 were also male. This is the clue as to what is going on. Most violence (and thus most murder, which is simply violence's most extreme expression) is a consequence of competition between young, unemployed, unmarried men. In the view of Darwinists, these men are either competing for women directly ("You looking at my girl, Jimmy?") or competing for status ("You dissing me, man?").

This is not to deny that crimes of violence are often crimes of poverty (for which read low status). But that is precisely what Darwinism would predict. There is no need to invoke the idea that people are "born criminal". All that is required is the evolution of enough behavioural flexibility to respond appropriately when violence is (or would have been, in the evolutionary past) an appropriate response.

An evolutionary analysis explains many things about crime (and not just murder)—particularly why most criminals are males of low status. A woman will rarely have difficulty finding a mate, even if he does not measure up to all her lofty ideals. In the world of Moulay Ismail the Bloodthirsty, however, a low-status man may be cast on the reproductive scrap heap because there are no women available to him at all. Though the world in which humanity evolved was nowhere near as polygamous as Moulay Ismail's, neither did it resemble the modern one of monogamous marriage, which distributes women widely. In those circumstances, if the alternative was reproductive failure, risking the consequences of violence may have been are worth the gamble—and instincts will have evolved accordingly.

For similar reasons, it is no surprise to Darwinists that those who rape strangers are also men of low status. Oddly, considering it is an act that might result in a child, the idea that rape is an evolved behaviour is even more controversial than the Darwinian explanation of murder. Randy Thornhill of the University of New Mexico, who proposed it on the basis of criminal data and by comparing people with other species, was excoriated by feminists who felt he was somehow excusing the crime. On the other hand, it has become a mantra among some feminists that all men are rapists, which sounds a lot like the opposite point of view: biological determinism. Insert the word "potential", however, and this claim is probably true. To a Darwinist, the most common form of forced mating, so-called date rape, which occurs in an already charged sexual environment, looks a lot like an adaptive response. Men who engage in it are likely to have more offspring than those who do not. If a genetic disposition for men to force their attentions on women in this way does exist, it would inevitably spread.

Sexual success, by contrast, tends to dampen criminal behaviour down. Getting married and having children—in other words, achieving at least part of his Darwinian ambition—often terminates a criminal's career. Again, that is a commonplace observation. However, it tends to be explained as "the calming influence of marriage", which is not really an explanation at all. "Ambition fulfilled" is a better one.

There's much more of note. This seems to be relevant to both culpability and theories of deterence and rehabilitation. Quite interesting.
12.23.2008 3:22pm
Tom R (mail):
"Holmes kicked the dog, but the curious thing was this: that the dog did not bark."
12.23.2008 3:54pm
Liberal Libertarian:
Wonder why IHS supported this study (look at the very end)...
12.24.2008 1:42pm
einhverfr (mail) (www):

Well, I'm certainly not suggesting that the analogy is _exact_. I would actually be surprised if some aspect of primate behavior were so exactly mirrored in the common law that no objections could be raised toward the analogy.

I am not sure. Generally, there is a difference between tort law (usually a negligent or hostile action against an individual or group) and criminal law (a crime against society). IMO, a lot of this comes from a monarchial system. In many places with smaller social units, all law was seen as demanding repayment primarily to the injured party (see the Brehon Code of Ireland, the Gragas of Iceland, etc).

For example, in Ireland, rape was generally punished by a financial settlement paid to the victim plus, if a child resulted, full financial support for that child. In Iceland, premeditated murder done openly (and announced properly afterwards) was generally punishable by a financial settlement only and what we might think of as criminal sanctions only occurred if the individual could not pay the weregild (though usually others would help).

In Iceland, the only crime I can think of was "secret murder" (in other words, killing someone and trying to hide this fact either by deliberate action or omission).
12.26.2008 4:23pm

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