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Licensed Unlicensed Requires Authentication Published by De Gruyter November 6, 2015

The Knobe Effect, Indifference, and Constitutional Law

Moshe Cohen-Eliya and Iddo Porat


Some constitutional accounts, in particular in the U.S., emphasize government attitudes to harming rights. Up till now, such accounts have primarily concentrated on intention to harm rights and on government acts of illicit intentions. However, such accounts have neglected a large scope of government attitudes that indicate indifference to harming rights rather than intention. In our article we use insights from experimental philosophy to develop an account of the role of indifference in constitutional law. We propose that the results of the Knobe Effect experiment show that the correlation between intent and indifference can be explained by the idea that indifference shows a lack of respect for the value or for the person harmed. Indifference, therefore, manifests a similar wrongness in terms of moral attitude as intent. The implications in terms of constitutional law are substantial. In principle, government actions manifesting indifference toward harming rights should be reviewed on the same lines as government actions based on intention to harm rights.

Published Online: 2015-11-6
Published in Print: 2015-11-1

©2015 by De Gruyter

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