Cultural Cognition and Consent

This 2010 paper of Kahan (Dan M. Kahan, Culture, Cognition, and Consent: Who Perceives What, and Why, in Acquaintance-Rape Cases, 158 U. PA. L. REV. 729 (2010)) is looking into how the legal problem of consent in rape cases intersects with the cultural cognition problem of being a juror in such a situation. The background of this problem is the issue that scripts like token-resistance and "no means yes" complicate the adjudication of fault in rape situations.

Under Kahan's framework, scripts originate with the identity-confirming culture of the juror.

Individuals’ group commitments determine not merely what significance they believe the law should attach to particular facts but also what they perceive to be legally significant facts. [755]

The key supports that the group provides fuel these cases of defending the group:

Cultural cognition is a form of identity self-defense. It is unsettling to be confronted with the claim that behavior revered in one’s community is detrimental to society, or that behavior detested within one’s community is benign or even socially beneficial. [755]

After all

The costs of accepting such a claim can include emotional dissonance and alienation || from others whose support is essential to one’s material and psychic well-being. [755f]

Questioning such stances diminishes not only the individual's support within the group, but also the status of the group within society as a whole [756]. Therefore, evidence is brought in line with the cultural belief and contrarian evidence rejected or disputed.

Kahan then sketches the two world-views that typically collide in US socio-political discourse:

One [cultural style, RCK], which is conservative, traditional, and hierarchical in its orientation, prescribes highly differentiated and stratified gender roles. Men demonstrate their virtue through competition in civil society at large. They are entitled to exercise authority over women, whose status depends on successfully dis- || charging domestic responsibilities. Within this way of life, male promiscuity is tolerated—if not admired—but women are expected to be both chaste and faithful; a woman who engages in sex outside of marriage (or outside of a committed relationship likely to lead to marriage) is viewed with suspicion and contempt. [756ff]

Kahan characterizes the alternative as follows:

The alternative [cultural, RCK] style is more egalitarian in nature. It judges the character of men and women by a largely unitary measure and treats female sexuality as a legitimate expression of individual autonomy. [757]

Kahan reminds us that for women in the conservative, traditional and hierarchical cultural style, the token resistance mode is a way to deal with the delta between cultural expectations (tied to cultural valuation) and potential sexual interests [757].

By conforming to this script [of token resistance, RCK], a woman obtains the benefit of sex with a particular man while communicating that she does not have an appetite for casual or promiscuous sex generally. [757]

This turn from no-to-yes is independently flattering to the virility of the hierarchical male [758], underscoring his exceptional status. 

Kahan points out that there is research to show this instrumental nature of token-resistance: women self-report on applying it when interacting with hierarchical rather than egalitarian males [758].

... research on token resistance finds that women who report having engaged in it are themselves likely to be ambivalent toward the hierarchical style. [759]

Those that are firmly hierarchical abide by its chastity requirements and do not need the strategy [759]. Only those concerned about their standing in the hierarchical cultural style require the ruse [759].

For obvious reasons, those women that firmly abide by the chastity requirements of the hierarchical cultural style are most likely to believe that women employ token resistance as well as that other forms of behaviors are "leading men on" [759] to the point of putting the blame on the women who get raped [759].

... women who are strongly committed to hierarchy not only strongly believe that some women engage in token resistance [759] but are also very keen to detect and condemn it. [760]

This is because those using token resistance effectively cheat, in the hierarchy thinking, gaining the advantage of a good reputation without paying the price of sexual virtue [760]. These "cheats" must be called out.

“Mere words” (“no,” “stop”) are just that—mere words, a form of cheap talk that a bad woman can easily use to disguise her lack of virtue. Men know that bad women strategically feign lack of consent for precisely this reason. [760]

The male partner, "no hero, to be sure, but one whose indulgence of his natural male appetite for casual sex is excusable" in this social matrix [760] become vicious only because he engages with a truly virtuous woman.

It is with this cultural matrix that witness approach the testimony "in a date-rape case like Berkowitz" [761].

... as a result of varying emotional and social commitments, individuals of diverse cultural persuasions will acquire uneven identity stakes in the law’s recognition (or rejection) of the norms that construct the cultural logic of token resistance. [761]

Justice in effect means that their community norms are affirmed by the law [761] -- making them prior to the law (as pointed out before [755]). But this affinity cuts both ways:

Individuals whose status depends on opposing norms, in contrast, will be motivated to see the facts in exactly the opposite way, in part to protect the relative standing of their cultural community in society at large, and in part to protect their own personal standing within that group. [761]

This leads Kahan to posit four hypotheses that structure his experiments:

1. "... the law will not matter very much in a case like Berkowitz." [761]
2. "... culture will matter a lot." [762]
3. "... hierarchs and egalitarians will disagree." [762]
4. "... other individual characteristics will influence variance in a manner consistent with their relationship to cultural identities." [763]

Because of the dominance of culture over law, if the law changes, perceptions will change to keep in line with the culture [761]. Culture is the one that supplies the motivations and intentions that the jurors attribute to the parties [762]. In this particular case, hierarchs will see norm-evasion and align with the defendant, and egalitarians with the victim's right to female sexual autonomy. Both sides will therefore disagree [762].

Since the grid that Kahan inherited from Mary Douglas and Aaron Wildavsky has 4 positions, there is another dimension, the one of individual vs communitarian. However, Kahan argues, this dimension has unclear explanatory power in this case [763].

Individualistic norms tend to confer status on both men and women for mastery of market and professional roles. But because communitarian norms reward men and women alike for resistance to acquisitive or self-seeking behavior, the individualist/communitarian dimension of cultural worldview does not oppose gender roles per se as strongly as the hierarchical / egalitarian dimension does. [762]

Kahan warns us that gender may not explain much, since culture divides the genders as well [763]. 

This hypothesis fits awkwardly with both the standard feminist critique of the common law definition of rape and the conventionalist defense of it. [763]

It is the hierarchical women who have the most to lose if token resistance suffices to keep rape at bay.

Indeed, the cultural-cognition thesis furnishes reason to expect that hierarchical women might be even stronger in their pro-defendant perceptions and judgments than hierarchical men. ... They are the ones, then, who have the greatest cultural identity stake in aligning the expressive force of law toward condemnation of such behavior. [763]

Notice that Footnote 138, spanning [763f], is a treasure-trove of cases where the a-cultural mock-jury trial investigations find themselves baffled at women siding with the perpetrator when consent is unclear.

Kahan finally [769-770] gives a summary of the dimensional grid that he has been employing all along when describing the measures of world views that the study works with.

... cultural values were measured with “agree/disagree” attitudinal items forming two scales: Hierarchy/Egalitarianism (Hierarchy) and Individual- [769] ism/Communitarianism (Individualism). The former measures how favorably or unfavorably disposed individuals are toward a social order that features differentiation and stratification of social roles based on observable and largely fixed characteristics (including race, gender, sexual orientation, and class). The latter measures how favorably or unfavorably disposed individuals are toward a social order that treats individuals as responsible for securing the conditions of their own flourishing without collective assistance and that resists collective interference with individual strivings. Scale reliability was high (Hierarchy, alpha = 0.89; Individualism, alpha = 0.91). [770]

(where alpha is Cronbach's alpha to measure the internal validity of attitudinal scales; cf. Fn 154).

Kahan sees a clear methodological advantage to using these two scales.

Hierarchy measures a disposition more general than those measured by gender-role scales and is conceptually more remote from the study’s dependent variables, which themselves relate to perceptions of sexual behavior. [770] 

Kahan then presents graphs to give an idea of the data collected [776]. 

 However, the readiness to find Dave guilty put older hierarch females at the bottom of the chart [777].

Kahan et al used multivariate regression analysis statistical simulation to gauge the impact of characteristics on the decision to want Dave found guilty of rape [779-780].

Kahan then reviews the four hypotheses described above [761-763].

Hypothesis #1, that the specific of the laws would have no effect, is true for four of the five categories; only the "no-means-no" text [781], which was not actually law in the USA at that time in any state, had a 10% pts increase on the likelihood of conviction (± 6.9%) [781].

Hypothesis #2, that the cultural effect would dominate, was born out [781], with a 22.8% pts impact (± 7.6%) along the Hierarchy/Egalitarian axis. This also validated Hypothesis #3, that being hierarchical predicated finding Dave not-guilty, and being egalitarian predicted finding Dave guilty [781].

Hypothesis #4, that all other characteristics would be negligible, was born out, including the effects of ideology or party affiliation [782]. Only southern versus northern did, but that one, as mentioned before [cf 763], is due to geographical sorting of hierarchy versus egalitarian into the US South vs the US North East [782]. The influence of age and education had an effect only in aggregate: young college educated voted guilty, old high-school educated not guilty by 9.7% pts (± 7.7%).

Gender for hierarchy increased the probability of not-guilty (men vs women) by 6.8% pts [782] (± 6.4%), while for egalitarian it had a small effect, 1.4% pts, (± 6.0%) [783]. Combined with age, the gender becomes very important: a 60-year old hierarch female is 11.5% (± 8.6%) more likely to vote not-guilty than a 21-year old hierarch male, and a whopping 30.2% (± 10.8%) more likely to vote not-guilty than a 21-year old egalitarian male. As Kahan quips:

A defendant in a date-rape case, then, might well be better off with an older, traditional woman on his jury than with one of his own peers. [783]

Fact perceptions -- NOMEANSNO, CONSENT, HONEST, REASONABLE, NOTLEAVE, NORESIST -- tracked these results [784], resulting in the following graph [785].

Again, hierarchy versus egalitarian is the strongest difference (per hypothesis #2 and #3).

Kahan et al then used ordered logistic regression analysis and statistical simulation of responses to CONSENT to distinguish the influences [785], producing the graph and legend below [786].

These results parallel the judgement outcomes:

All else equal, a subject was 27.7 percentage points (± 7.8%) more likely to agree that Lucy in fact consented, notwithstanding her verbal resistance, when that subject was moderately hierarchical rather than moderately egalitarian in outlook. [787]

Study Hypothesis #4 that effects were meaningful only when conditioned on the cultural views repeated itself here [787]. 

... the impact of being moderately hierarchical rather than moderately egalitarian was substantially larger (34.2%, ± 8.6%) among women. [788]

So the main surprise of the study was the violation of Hypothesis #1 in the case of "no-means-no", which apparently convinced some hierarchicals?

The impact of the “no means no” definition in arousing anti- defendant fact perceptions was not anticipated. [788]

This effect of the "no-means-no" position is also observable for the question of fairness [792].

All else equal, being assigned to the “no means no” condition predicted a decrease of 11.3 percentage points (± 6.6%) in the likelihood that a subject would agree that convicting Dave of “a crime as serious as rape” would be “unfair.” [791]

Kahan himself points to the independence of this assessment in the hierarchy model. 

Moreover, tests failed to disclose any interaction between UNFAIR, the “no means no” condition variable, and Hierarchy. In other words, being assigned to “no means no” generated as great a disposition to see conviction as fair among subjects disposed to a hierarchical worldview as it did among subjects disposed toward an egalitarian one. [793] 

[My personal reaction would be that "no means no" sounds exactly like something a hierarchy female would say to her children. But of course, I have no data for that .... RCK]

Kahan turns now to the problem that his findings do not match any of the positions in the date rape debate.

Contrary to the standard feminist critique, disagreements over the significance of “no” cannot be attributed to a conflict between opposing male and female “points of view.” Because cultural differences cut across gender, there is not a meaningful difference among men and women per se on what the facts are or on what the outcome should be in a case like Berkowitz. [794] 

Kahan however thinks that this experiment provides the feminist critiques with psychologically plausible explanations of why some women participate in their own oppression.

Far from undermining the feminist critique, this insight should be understood to fortify it by furnishing a psychologically realistic account of why members of a group whose well-being is disserved by a legal institution or practice might nevertheless form beliefs, attitudes, and preferences that perpetuate it. [795]

Kahan then considers that thought the "no-means-no" intervention looks promising, there remains a significant group that was unaffected.

Nevertheless, more than one-third of the subjects instructed to apply the “no-means-no” definition—about 75% as many as were instructed to apply the common law definition— continued to believe the defendant should not be found guilty. [796] 

Though the sway was limited, and lawyers might still bet on jury selection, the "no-means-no" beat out other legal formulations without generating the feared backlash [796].

On the contrary, subjects who received the “no means no” instruction were more likely than those who received the common law, strict-liability, or reform definitions (or no definition at all) to concur in the fairness of such an outcome. [796] This result, moreover, was uniform across subjects of all worldviews, hierarchical as well as egalitarian. [797]

Kahan is cheered that the incoming generations are not confused about the facts of each other's signals of consent or non-consent [798].

The study’s results, how- ever, suggest that young, sexually active men and women, particularly ones who share cultural styles, are unlikely to misunderstand each other in that situation; such persons form comparable impressions when they consider the facts in Berkowitz. [798]

Kahan considers that the reactions to date rape cases like Berkowitz most represent other contested subjects like abortion.

That controversy, Kristin Luker has shown, does not pit men against women so much as it pits women of one cultural style against women of another. Those on the “pro-life” side consist disproportionately of women committed to hierarchical norms that confer esteem on women who successfully master domestic roles such as wife and mother. [801]

Because abortion rights bear these social meanings, moreover, “pro-choice” activists consist disproportionately of women committed to an egalitarian style. [801] 

These are, of course, the same groups of women in conflict over rape-law reform. [801]

 How then to reach consensus, if not by expressive overdetermination?

Whereas “public reason”—the paramount liberal discourse norm—prescribes denuding the law of social meaning as a strategy for inoculating it from culturally partisan values, the way to protect the law from the pathologies associated with endorsement of culturally partisan perceptions of fact might be to multiply such meanings. [804]

Because, as Kahan warns,

It is impossible to formulate a satisfactory response to the debate over rape-law reform without engaging more generally the distinctive issues posed by illiberal status conflict over legally consequential facts. [806] 

Motivated Reasoning for Identity-Protective Cognition

I am now working through Dan M. Kahan, Neutral Principles, Motivated Cognition and Some Problems for Constitutional Law, in: Harvard Law Review, vol 125 (2011), pp.1-77 (see also the summary by the author as a blog post, Motivated Reasoning and its Cognates). The Harvard Law Review version is independently useful, because it has two responses, by Mark Tushnet and by Suzanne Sherry.

Kahan, a former clerk of Supreme Court Judge Thurgood Marshall, takes his departure from the question of the neutrality of the US Supreme Court justices.

The most fundamental form of individual freedom that liberal constitutionalism secures for its citizens depends on the promise that government won’t impose legal obligations that presuppose adherence to a moral or political orthodoxy. [6]

Kahan is concerned that the socio-psychological context in which this freedom to pursue one's own happiness is negotiated is missed. 

Scholars and jurists have focused their attention entirely on the content of doctrines, I will argue, without attention to the social-psychological dynamics that shape how culturally diverse groups form impressions of what the Court’s decisions mean. [6]

People are hamstrung in noticing the others' illiberality without seeing their own. 

... although people are poor at detecting motivated reasoning in themselves, they can readily discern its effect in others, in whom it is taken to manifest bias or bad faith. [7]

What should be a discussion around evidence thereby turns into a question of social status of the in-group. 

... the issue of whose view of the facts will be endorsed by the law takes on added meaning as evidence of the groups’ relative social standing. The result is a distinctive cognitive form of illiberalism ... [7]

Claims of neutrality are disbelieved by those who disagree with the outcome of a ruling. 

... the neutrality of Supreme Court decisions becomes just another focus of illiberal status competition among groups who have fundamentally different visions of the good society — but who don’t disagree about the value of neutrality or about what neutrality in law requires. [8]

After analyzing the legal discourse on neutrality, Kahan turns to the problem of motivated reasoning in the case where the self-understanding of the individual is at stake.

Individuals depend on select groups — from families to university faculties, from religious denominations to political parties — for all manner of material and emotional support. Propositions that impugn the character or competence of such groups, or that contradict the groups’ shared commitments, can thus jeopardize their individual members’ well-being. [20]

Kahan breaks it down into three well known biases that people have:

Individuals are more likely to seek out information that supports than information that challenges positions associated with their group identity (biased search). They are also likely to selectively credit or dismiss a form of evidence or argument based on its congeniality to their identity (biased assimilation). They will tend to impute greater knowledge and trustworthiness and hence more credibility to individuals from within their group than from without. [21]

To throw in my own two cents for a minute, the credibility might well relate to a famous dictum by Karl Barth. Just as it is more difficult to deal with the disagreement of people closer to my own position, it is difficult to understand why people with greater knowledge and trustworthiness are not in my own group.

Kahan reminds us [21] that thoughtful people are even more adept at making such mental adjustments, pointing to his own research with Maggie Wittlin, Ellen Peters, Paul Slovic, Lisa Larrimore Ouellette, Donald Braman & Gregory Mandel, The Tragedy of the Risk-Perception Commons: Culture Conflict, Rationality Conflict, and Climate Change (Cultural Cognition Project, Working Paper No. 89, 2011).

Kahan then points to the problem of how "naive realism" leads people to spot the biases in others, in terms of the identity-protecting cognition, but not in their own stance.

Naïve realism refers to an asymmetry in the ability of individuals to perceive the impact of identity-protective cognition. Individuals tend to attribute the beliefs of those who disagree with them to the biasing impact of their opponents’ values. [22]

Nevertheless, in such situations individuals usually understand their own factual beliefs to reflect nothing more than “objective fact,” plain for anyone to see. [22]

In Kahan's reconstruction, this becomes the basis of the interminable round of mutual recriminations as the debate devolves into a "contest over the integrity and intelligence of those groups" [22]:

The (accurate) perception that a rival group’s members are reacting in a closed-minded fashion naturally spurs a group’s members to express resentment — the seeming baselessness of which provokes members of the former to experience and express the same. [22]

The study of these situations and behaviors is what Kahan aspires to in his research into cultural cognition (cf. the Cultural Cognition chapter from 2008, where Kahan admits his debt to Mary Douglas and Aaron Wildavsky's Risk and Culture of 1982).

Cultural cognition refers to the tendency of individuals to conform their perceptions of risk and other policy-consequential facts to their cultural worldviews. Cultural worldviews consist of systematic clusters of values relating to how society should be organized. [22] 

Kahan illustrates the challenge with an analysis of how people use their values to react to question involving the environment versus the economy.

People who subscribe to a relatively hierarchical and individualistic worldview, for example, tend to be dismissive of environmental risk claims, acceptance of which would justify restrictions on commerce and industry, activities they value on material and symbolic grounds. Individuals who hold egalitarian and communitarian values, in con- trast, are morally suspicious of commerce and industry, which they see as sources of social disparity and vehicles of noxious self-seeking. [23]

Even scientific consensus is not exempt from this matrix [24]; cf. Dan M. Kahan, Hank Jenkins-Smith & Donald Braman, Cultural Cognition of Scientific Consensus, 14 J. RISK RES. 147, 149–50 (2011); and even questions of date rape exhibit these viewpoints; cf. Dan M. Kahan, Culture, Cognition, and Consent: Who Perceives What, and Why, in Acquaintance-Rape Cases, 158 U. PA. L. REV. 729 (2010).

Thus, while the US project is united in its attempt to provide the good life for its citizens, the means of achieving this are hotly contested [25]. US voters are not haggling over values, they are haggling over facts which they valuate differently.

The varying emotional resonance of risk claims across distinct cultural communities predisposes their members to find some of these claims more plausible than others, a process reinforced by the tendency of individuals to seek out and credit information from those who share their values. [25]

As a result, policy debates tend to 

... build into rivalries among the members of groups whose members subscribe to competing visions of the best life. [25]

The positions that individuals take on whether the death penalty deters, whether deep geologic isolation of nuclear wastes is safe, whether immigration reform will boost the economy or put people out of work, and the like express their defining commitments and not just their beliefs about how the world works. [26]

In this context, the symbolic status competition becomes projected onto the policy actions of the state.

Whose answer the state credits — by adopting one or another policy — elevates one cultural group and degrades the other. [26]

Though Kahan does not use that terminology, the public discourse has turned into a zero-sum game of status where the state's choice of policy can only elevate the one side while disregarding the other.

Using this infrastructure, Kahan can now reconstruct the neutrality debate of the Supreme Court in terms of the illiberal bent of motivated reasoning toward identity-protective cultural cognition.

Even among nonzealots, however, perceptions of the Court’s decisions remain vulnerable to identity-protective cognition in much the same way sports fans’ perceptions of the calls of a referee — or dare I say umpire — do. [28] 

There is thus an inherent risk that citizens will perceive decisions that threat- en their group commitments to be a product of judicial bias. [28]

 Unfortunately Supreme Court findings use all the wrong argument types to get past this impression.

The Court’s decisionmaking conspicuously features procedures, techniques, and doctrines informed by the trappings of the grand neutrality theories. [28]

This comes about by "equating prevailing interpretations with “reason” and defeated ones with mere “will” or “preference,” [28] thus coming across as putting down the losing side of a ruling.

Against this back- ground, the decisions of the Court are no longer seen as determinations of particular disputes but rather as adjudications of the status and dominance of contending cultural groups. [29]

Using this framework, Kahan now turns to the 2010 term of the Supreme Court for analyzing the actual decisions that the court had made and looking at how the evidence of each side was contested by the other.

In cases involving sex equality, gay rights, the death penalty, police seizures, drug testing, and other charged matters, the Court has invoked empirical evidence — or some- times the lack of it — as warrant for its decisions. When it does so, the genuineness of its reasoning has provoked accusations of bad faith, not only from within the Court but also from without. [34] 

Some of these decisions may well be that the Justices think [35] such empirical recourse will help the losing side accept the verdict. But Kahan's approach suggests that doing so only aggrevates the feelings of rejection and status loss. Such a tack however [36] leaves the losing side with no interpretation but the feeling that they are "either deluding themselves or trying to deceive others." [36]

The narrative falls apart altogether when later decisions do away with the empirical support in lieu of moral justification.

The point is not that decisions grounded in empirical “fact” shouldn’t evolve into ones of “principle”; it is that the observable tendency of them to do so makes it predictable that citizens will suspect the Court is trying to deceive them (or is surrendering to self-deception) when it purports to lay decisive weight on “empirical facts.” [36]

At the same time, the empirical evidence becomes ammunition for the "winning side" to be used in their verbal sparring with the losing side.

This factionalized environment incubates collective cynicism — both about the political neutrality of courts and about the motivations behind empirical arguments in policy discourse generally. Indeed, Justice Scalia’s extraordinary dissent in Plata synthesizes these two forms of skepticism. [37]

In short, the Supreme Court is just as identity-protective as the remaining social discourse:

Empirical factfinding, then, is a normal and basically unremarkable member of the judicial toolkit — even for Justice Scalia. Except when it isn’t: empirical factfinding has properties that provoke identity-protective cognition in cases that are culturally charged, at which point individuals of diverse values are likely to disagree about whether the tool is being applied appropriately. [40]

After covering how this problem is especially strong in Free-Speech situations, where factual findings via the "non-communicative harm" priniple are necessary to distinguish between acceptable and unacceptable behaviors, Kahan concludes:

In this way, the Court’s decisions are transformed into symbols. In assessing whose “harms” are “cognizable,” the Court is adjudicating who counts in a factionalized society, the members of which live in a state of permanent resentment of one another’s perceived attempts to erect their worldview into a political orthodoxy. [49]

Of course, evidence and science are not the only markers. In the end, the "Framers' intent" and even originalism functions in quite the same way, as symbolic markers to constituencies:

As Greene has argued in another article, “originalism” is a kind of presentational style, adopted by academic critics and sometimes by angry Justices, that citizens (through the agency of culturally authoritative intermediaries) use as a cognitive heuristic for deciding what is at stake and whom they should trust in a charged case. [55]

For those outside of these cultural circles, the result was the opposite:

Both the valence of “originalist” theorizing and its denunciatory and confident tone begged credulity in a manner that in turn begged for rebuke. [55]

With David Strauss, Kahan argues that it is the combination of high ground for taking highly charged positions:

Judges’ reasoning triggers self-reinforcing waves of self-deception and distrust only when judges make use of the simulacra of these heuristics that get packaged as “theories” and sold to the public as furnishing exclusive guides for “neutral” interpretation. The provenance, valence, and tone of these frameworks are what make them carriers of the partisan meanings that provoke the complex of identity-protective mechanisms that polarize citizens on cultural grounds. [57]

Thus, the Supreme Court needs new expressive strategies that do not simplify extremely complex problems into siding with half of the electorate under the guise of empirical evidence. Researchers like Paul Secunda (e.g. Cognitive Illiberalism and Debiasing Strategies, Marquette Law Review) have proposed debiasing strategies that have at least some experimental evidence to recommend them.

Kahan begins [60] by pointing to the oddity that 5-to-4 decisions are still pronounced as obvious from the Supreme Court bench. This is bad, Kahan reminds us:

Studies of motivated cognition and related dynamics show that pronouncements of certitude deepen group-based conflict. [60]

Because the group-dynamic rewards conformity, the dissenters within the group will stay silent, increasing the appearance of cohesion and agreement. It is here that strategies can attach, by requiring each side to name plausible counter-arguments to their position. [61]

Because this requirement confers a type of procedural immunity for equivocating, those individuals who feel doubt about their group’s position will now add their voices to the mix. The genuineness of what they say, however, is not lost on the other participants. Those in the speaker’s group are exposed to evidence that they otherwise wouldn’t have seen, demonstrating that those who share their commitments hold more nuanced views. [61]

Members of the opposing group, too, see that those on the other side are not in fact uncomprehending of counterarguments; they are thus less likely to write off everything else the other side has to say as originating in self-deception or deceit. [61]

Judges can simulate this by admitting the complexity, the aporia of the issue at hand.

Aporetic engagement does not preclude a definitive outcome or resolution. But it necessarily treats as false — a sign of misunderstanding — any resolution of the problem that purports to be unproblematic. [62]

Kahan then turns to self-affirmation.

Researchers have found that self-affirmation devices can be used to counteract group conflict on political issues, such as the predicted con- sequences of a social-welfare policy or the performance of governmental officials. [67]

Kahan then introduces expressive overdetermination, a technique where a challenging fact is packaged with a consequence that appeals to the recipients: global warming ameliorated with nuclear power, or nanotechnology as mode of cleaning up the environment [67f].

Expressively overdetermined laws — ones that combine elements conveying a multiplicity of culturally valued meanings — have been instrumental in dissipating political conflict over environmental regulation and social welfare policies in the United States, and abortion in Europe. [68]

Kahan is not willing to do so when such accommodations might endanger an unambiguous outcome.

Sometimes governments enact laws that simply violate the Constitution, and sometimes citizens challenge laws that don’t. In those cases, the Court obviously must decide the case in favor of the side that has the better position. [69] 

But even there overdetermination can be used to give the opposing sides their due. 

Dipping into Factual and Narrative Cognition

 I was generally wondering how we got from the freedom to differ on how exactly purgatory works to dismissing the scientific evidence on climate change or vaccinations on grounds that amount to beliefs.

ChatGPT 4-o helpfully sent me to start understanding this by looking into the work of Dan Kahan at Yale and his research on cultured cognition and motivated reasoning (e.g. Motivated Reasoning and its Cognates, extracted from Dan M. Kahan, Neutral Principles, Motivated Cognition and Some Problems for Constitutional Law, in: Harvard Law Review, vol 125 (2011), pp.1-77).

In a blog entry that gives a talk at an NSF 2011 conference, Kahan summarizes the problem well:

When risks and other facts that admit of scientific investigation become the focus of cultural status competition, members of opposing group will be unconsciously motivated to construe all manner of evidence in a manner that reinforces their commitment to the positions that predominate within their respective groups.

Or, as Kahan clarified in a blog entry from 2014 when discussing whether social science research shows a dissipation of trust in science in people who identify as Republican,

... political polarization over risks and other policy-relevant facts is a consequence of a the latent distrust citizens with opposing cultural identities have of one another, & their suspicion that "science" is being invoked opportunistically, disingenuously to disguise as claims about "how the world works" what are in fact contested understandings of "how we should live".

Note that ChatGPT 4-o was very clear that I needed to look at the side of the narrative imagination (Martha Nussbaum) as well as the epistemic character that dealing with truth requires (Quassim Cassam). The "minimal program" for looking at the various facets of this issue ChatGPT 4-o summarized in this handy table, which I copy as a graphic here.

The core dilemma in this investigation is the aymmetry between facts and narratives:

“Facts do not counter, narratives do. But you need facts to invalidate narratives.”

As ChatGPT 4-o pointed out:

This is the epistemic asymmetry that the 21st century hasn’t resolved. And bad actors have exploited it masterfully: because a compelling lie with emotional resonance is faster and more persuasive than a slow, careful debunking—even when the debunking is factually unassailable.

Juritsch on the Babenberger -- Part II: Markgrave Heinrich I

We continue with the book by Georg Juritsch, which is a staggering 750+ pages long. We are speaking about Geschichte der Babenberger und ihrer Länder (976-1246), published in Innsbruck with Wagner in 1894.

Markgrave Heinrich I (994-1018)

994 Wolfgang of Regensburg also died (25). He had been a champion of Christianity in the Eastern marches and especially in Hungary. The Hungarian ruler Geisas and his wife Sarolt were supportive of the Christianization. Wenn Gaisas son Waik (995) took over the rulership, he turned to Bavaria not Constantinople, requesting the hand of Gisela, the daughter of the Bavarian duke Heinrich who had just died, to accept Christianity completely. As a result (26), Stefan I (995-1038) becomes the first Hungarian Christian king. 

The new bishop of Passau, Christian (24), had the emperor Otto III reaffirm all his privileges in 999 (27), including market, mint, weight and toll rights. It was not always clear who influenced which abbey, however; Duke Heinrich II of Bavaria placed abbots in Altaich and Tegernsee, much to the annoyance of the Bishop of Freising (28). The Benedictine rule of Altaich is spread in its reform, as the other abbeys request monks from there to become abbot with them, for example, Lanthbert in Ostrow founded by Boleslaw der Fromme.

The Northern March of the Babenberger, under Markgrave Heinrich, had been promised Bavaria if Duke Heinrich of Bavaria, a cousin of Otto III, was elected king. The election took place in 1002, but the Markgrave did not receive Bavaria. This disappointment could not be fixed with extensive land donations: a complex of grounds between Liesing and Triesting, 20 Huben between Kamp and March. The Northern Markgrave still established connections with the Polish Duke Boleslaw. The insurrection (30) pulled in the Babenberger Ernst, who had assisted in the battle against Arduin in 1002 in Italy, and the brother of the new king, Bruno von Augsburg.

The Northern March was horribly devastated in this conflict, Heinrich was captured, as was Ernst, and would have been executed without the intervention of Willigis von Mainz. Heinrich III of Lützelburg received the Bavarian duchy instead (31), even if the capture of Prague in 1004 (30) lead to the release of the Babenberger (31).

Luitpold's son Poppo had studied in Regensburg to be ready for a church position (31), and moved on to St Emmeran afterwards (32). When Heinrich II founded a new bishopric in Bamberg, which was to be a pattern institution, he made his chancellor Eberhard the bishop (32) and Poppo the cathedral provost (33). 

(rck Juritsch sees the hanging of St Coloman, whom he calls a pilgrim from Palestine, in Stockerau during this time as an indicator that the popular justice of the people continues in spite of the jurisdiction of the markgrave.)

1014 the corpse of Coloman is transferred to Melk and then the miracles begin (34). 

In spite of his involvement in the insurrection, Count Ernst was allowed to marry the older sister of Duke Hermann III of Suebia. In 1012, Hermann died and Ernst now became Duke of Suebia (34), but dies soon when hit by a friend's arrow during the hunt (35).

Adalbero von Lützelburg had basically been holding Trier hostage since 1008 (36). But the Emperor called his bluff in 1017 and had the clerics and the people acclaim Poppo to be archbishop of Trier. Poppo goes to Rome (37) to pick up his Pallium on April 8, 1017. Poppo reflects the Benedictine reform, expands the cathedral by 1/3rd, and becomes the guardian for his nephew Ernst. His sister Christina moves to Trier to enter a nunnery there. Poppo visits Palestine (38) and possibly even Babylon.

Markgrave Heinrich I is equally reliable on the emperor's side, attacking the polisch borderlands of Moravia in 1015 and leaving some 800 men of Boleslaw's dead on the field (38). Two years later, in 1017, he cuts off the returning Polish army laden down with plunder.

Then the Northern Markgrave Heinrich of Babenberg dies and his brother Adalbert becomes the new markgrave (39). 

Juritsch on the Babenberger -- Part I: Markgrave Luitpold I

This is probably going to have to be a multi-part post, since the book by Georg Juritsch is a staggering 750+ pages long. We are speaking about Geschichte der Babenberger und ihrer Länder (976-1246), published in Innsbruck with Wagner in 1894.

The general organization of the work is to go through the individual rulers, though some of them, such as Leopold VI and his son (and final Babenberger) Friedrich have multiple chapters. It is not clear if this is correlated with their importance only; after all, the general state of records improves the closer one moves toward the present.

Before the Babenberger

Juritsch sets us up in 907, a hundred years after Charlemagne, when the East Marches are lost to the invading Hungarians, and the area from the Plattensee to the Enns is taken. Duke Luitpold and his Bavarian army was killed that year, including the bishops Thietmar of Salzburg and those of Freising and Säben (1). Juritsch speculates that, not unlike the Romans, the German pioneers retreated to the west and left the border marches depopulated, while abbeys (Altaich, Regensburg, Passau, Freising, Salzburg) and bishops held on to their legal titles (2) of their latifundiae (4) in the hope of future reclamation (2).

Though most of the villages were wood constructions, there were a few stone fortifications, such as the Eparesburg of Kremsmuenster, or the Hollenburg, and the holdings of some of Charlemagne's liegemen near St Pölten. Karlmann had owned a palatinate near Baden (3), and there was Mödling, a fief of Passau; surely both were fortified as well. In the Tullnerfeld, the remains of the Roman fortifications at Faviana and Comagena (Tulln) could be repurposed as defenses at short notice. (rck: Juritsch thinks that Faviana is Traismauer, where the Moravian duke Priwina was baptized (3), which however was called Augustianis; Favianis would have been the Roman castle Mautern.)

Though colonization had pushed along the rivers emptying into the Danube into the pre-alps, those ranching areas were just as deserted (3), though the Huns undertook no effort to destroy either fruit orchards or vineyards, looking mainly for plunder and slaves.

The military fortunes varied around the reign of Duke Heinrich II of Bavaria, the brother of the king; the Hungarians were defeated at Sediraburg and in the swamps of Drömling (938), and near Wels at the Traun (943 or 944). Bohemia had been put into its place (4; 5) making it possible for Bavaria to focus on the reconquest. The victory of 948 found its projection even into the writings of the Gandersheimer nun Hrotsuit (5). When the Hungarians tried to take advantage of the uprising of Arnulf and Luitpold in 954, they revolt was put down decisively and the Hungarians defeated August 10, 955 near Augsburg (Lechfeld). 

The religious rulers were ready for re-colonization of their properties (6) and pushed beyond the Wachau on the left and the Traisen on the right side of the Danube banks. This reinstated the separation of the church territories of Salzburg and Passau (6). 

Several of the Hungarian rulers at the Lechfeld (Karchan Bultzu, Dewix, Achtum) had already been christianized via Constantinople. The East-Roman monk Hierotheus was the bishop of Hungary, and the monastery of St John the Baptist near the river Maros was in place (7). The prince-bishoprics of Salzburg and Passau tried to build on these foundations when attempting pacification through Christianization. 

An important person in that context was Pilgrim of Passau (8), nephew of Archbishop Friedrich von Salzburg, who had grown up in the monastery of Altaich, another owner of latifundiae in the Eastern marches. Pilgrim was also related to the Arnulfinger, key landowners in Bavaria and Carinthia (8). Pilgrim attempted to reorganize the responsibilities by consecrating a few more bishops via Benedict VII in Rome. He justified this with embellished reports of the missionizing successes in Hungary (9) and in his role as the archbishop of Lorch. Implied was the elevation of Passau to a metropolis (10) of an archbishop. Haldemar organized a papal bull in Rome supposedly reflecting the archival state there (11) which was used in this regard. Friedrich von Salzburg was not excited (11),  and his influence in Rome sufficient to get the decision reversed. Pilgrim, thwarted, kept the bull and twelfth-century documents record him as archbishop nevertheless.

Refounding the Eastern Marches (976-774)

Emperor Otto I died 973 (12). The Bavarian Duke Heinrich II made a pact with Boleslava II of Bohemia and Miseco of Poland. Among those assisting the new emperor Otto II to put down the revolt was Luitpold, a count of the Danube district, and his brother Berthold, whose father was a relative of the sister of Heinrich I of Saxony. They themselves believed their descent from one Adalbert of Babenberg, who was executed in the reign of Ludwig the Child, but a franko-suebian origin makes more sense. 

The brothers had known the favor of Otto I already and now Berthold received the northern district and Luitpold the Eastern marches. 

The marches toward Carinthia and Verona were separated to form the Duchy of Carinthia (13), and the reduced Bavaria given to the Suebian Duke Otto.

This Ostarrichi of Luitpold was enclosed by the Enns in the West, the town of Spitz in the East (13), and the Traisen in the South (14). In order to secure this border region, the count of the marches was the sole count in this territory, required to both hold diets and attend the Bavarian diets (13) and serve in their wars.

We know that soon thereafter three counties were established, at Neuburg, Tulln and Mautern, which the marcher count had to service in a six-week rhythm (14). At the same time, Luitpold remained the count of the Danube district, especially the monastery of Metten received donations from him. He also held the castle of Melk (20), later claims of Passau notwithstanding.

Otto II was generous toward Passau as well (15): 975 they received Kremsmünster, the toll at Passau, the Ennsburg, St Florian and St Pölten. When the Carinthian duke Heinrich rebelled, Passau suffered destruction of its cathedral, which was made good with donations around Lorch. Salzburg, which had also stood with Otto II, received lands as well (16).

Otto II was smart to look to the churchmen for support against his aristocracy, and some of them, such as Wolfgang of Regensburg, were brave warriors that built their own defenses, such as the Wieselburg.

With the elimination of Duke Arnulf, the monasteries of Altaich and Tegernsee had lost their roles, and the game of latifundiae was down to Salzburg, Passau and Regensburg.

While the marcher counts did not have to participate in Italian wars, such as Otto II's campaign of 979, it was good to remain close to the emperor and the Roman curiae to realize plans, as the Merseburger bishop Giseler had demonstrated when he achieved his elevation to the archbishopric of Magdeburg (16) when Merseburg (which Otto I had created as a bishopric in gratitude to Laurentius after the Lechfeld) was decommissioned again (17). Unsurprisingly, the disaster in Italy of 979 (17) was considered "payback" from Saint Laurentius for having lost his bishopric so hastily [rck Wikipedia suggests that Otto II died of a malaria infection during the campaign]. 

Perhaps the contemporaries also expected a return of the Hungarians, which happened in 983 with the death of the Bavarian duke, but Luitpold managed to beat them back and even extend his sphere of influence to the Wiener Wald (17). Pilgrim nevertheless painted a picture of devastation of his lands in the Eastern marches when meeting Otto III in Bamberg 985. The point of this complaint was (18) to receive rights to bring free settlers into the marches, in addition to the bishop's colonials. These free settlers should be free of the Ministerial's interference, either fiscally or legally through the courts of the markgrave. Otto III obliged Passau, extending the immunities of Karl III, which in turn led to an apparently quick increase in free Bavarian settlers into the Eastern marches.

Pilgrim organized Synods to Lorch and Mautern (18) to settle the question of who would receive the tithe between Enns and the Wiener Wald (19), a topic that was also discussed at the Synod of Mistelbach.

Friedrich of Salzburg was no less concerned to get his holdings certified by the authorities in Rome and at the Imperial court, and the list is long and impressive: Ybbs, Url, Megalicha, Wachau, Arnsburg, Grinzing, Holenburg, Tulln, Pottenbrunn, Traismauer, Oberwöling. Unfortunately, these rights were backed with a forged privilege of King Arnulf (19), which led to ongoing frustrations 200 years later still (20). 

The warfare had diminished the education in the new marches as well; Count Udalrich von Ebersberg claimed that all Bavarians knew how to read the public law (Volksrecht) (20), but saw this no longer the case during his adulthood. The school in St Emmeran (21), reformed in 980 by St Wolfgang of Regensburg and reorganized by the Benedictine monk Ramwold of St Maximin near Trier, was famous and had 300 books in its library managed by Reginbald, who worked to increase the holdings. Ramwold had the Aureus Codex of Emmeran renovated. Salzburg had inherited most of its books, including Beda's De Arte Metrica of 701 and a collection of letters from Alexander the Great to Aristotle. There was also Bishop Reginold of Eichstätt, who knew Hebrew and Greek und wrote a vita of St Willibald and poems about St Wunnibald and St Blasius. Tegernsee (22) was renovated from St Emmeran through Gozpert (21), who brought enthusiasm for the classics with im (22) and had Boethius, Stasius, Persius, Horaz and the letters of Cicero read and copied.

(rck Juritsch thinks that Master Conrad wrote earlier versions of the Nibelungenlied in Latin, no less, at the behest of Pilgrim of Passau around this time; modern scholarship assumes that the epic was written in Middle High German from the beginning and that Pilgrim occurs because this was during the time that Pilgrim was supposed to be canonized. (22) Juritsch is well-informed about the miracles some 200 years after Pilgrim's death at the rediscovery of his grave (23).)

In 991 both Friedrich of Salzburg and Pilgrim of Passau died (23).

In 994 (24), Luitpold is hit by a stray error during a wargame and dies July 10th, 994. Thietmar of Merseburg praises him (24), as do the Annals of Quedlinburg. 

Luitpold's son Heinrich I becomes the new markgrave, even though the role is not hereditary yet.