Hostname: page-component-586b7cd67f-t7czq Total loading time: 0 Render date: 2024-11-27T13:50:32.219Z Has data issue: false hasContentIssue false
  • English
  • Français

Naturalizing Responsibility

The Role of Neuroscience in Addressing the Question of Moral Responsibility in Law and Clinical Practice

Published online by Cambridge University Press:  16 September 2016

SILVIA ZULLO
Get access Rights & Permissions [Opens in a new window]

Abstract:

In the contemporary debate on the use of the neurosciences in ethics and law, numerous arguments have been bandied about among scientists and philosophers looking to uphold or reject the reliability and validity of scientific findings obtained by brain imaging technologies. Among the most vexing questions is, Can we trust that technology? One point of disagreement is whether brain scans offer a window through which to observe the functioning of the mind, in such a way as to enable lawyers, judges, physicians, and lawmakers to detect anomalies in brain function that may account for criminal unconscious behavior. Those who stand behind brain imaging believe that this can indeed be achieved, whereas those in opposition stress that brain scans are highly open to interpretation and that the data they provide is insufficient to establish causal connections. The question essentially comes down to whether technology can reliably be used to determine the intentions of the individual, thus establishing mens rea, for example, and hence responsibility. This article focuses on the latter notion and explores whether we can rely on the neurosciences to shed light on a complex form of moral and legal reasoning, as well as the role of the neurosciences in reawakening a philosophical and legal interest in trying to set responsibility on an empirical basis.

Keywords

brain imagingcriminal law and responsibilityneurosciencesmoral reasoning
Type
Articles
Information
Cambridge Quarterly of Healthcare Ethics , Volume 25 , Special Issue 4: Clinical Neuroethics , October 2016 , pp. 700 - 711
Copyright
Copyright © Cambridge University Press 2016 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Notes

1. See Flickering, MJ. Admissibility: Neuroimaging evidence in the US courts. Behavioral Sciences & the Law 2008;26:29–49;Google Scholar Illes, J. Neuroethics in a new era of neuroimaging. American Journal of Neuroradiology 2003;26:1739–41.Google Scholar

2. See Stins, JF, Laureys, N. Thought translation, tennis and Turing tests in the vegetative state. Phenomenology and the Cognitive Sciences 2009;8:361–70.CrossRefGoogle Scholar

3. The revived interest in these questions actually goes back to the early 1980s in response to the neuroscientific findings on free will owed in large part to the work done by the neurobiologist Benjamin Libet. What these findings suggest is that we are not as free as we might like to think in making the choices we make, for the range of available choices has already been selected for us in the brain before we even become aware of the decisionmaking situation at hand. See Libet B, Gleason CA, Wright EW, Pearl DK. Time of conscious intention to act in relation to onset of cerebral activity (readiness-potential): The unconscious initiation of a freely voluntary act. Brain 1983;106:623–42.

4. For a discussion of the roots of moral knowledge, see Churchland, PM. Rules, know-how, and the future of moral cognition. In: Campbell, R, Hunter, B, eds. Moral Epistemology Naturalized. Calgary: University of Calgary Press; 2000: 291–306;Google Scholar and Churchland, PS. Our brains, our selves: Reflections on neuroethical questions. In: Roy, DJ, Wynne, BE, Old, RW, eds. Bioscience and Society. New York: Wiley; 1991:77–96.Google Scholar All the decisions we make involve some evaluation of the consequences we expect them to have. This evaluation is driven by a range of factors: the brain’s reward system; the complex networks supporting emotions, appetites, and moods; our background knowledge of the way the world works; and our varying capacity to act in a world so constructed. See Illes, J, Raffin, T. Neuroethics: A new discipline is emerging in the study of brain and cognition. Brain and Cognition 2002;50:341–4.Google Scholar

5. See Changeux, JP. The Good, the True, and the Beautiful: A Neuronal Approach. New Haven, CT, and London: Yale University Press; 2012.Google Scholar

6. See McGinn C. What can your neurons tell you? New York Review of Books 2013 July 11.

7. See Strawson PF. Freedom and Resentment and Other Essays. London: Methuen; 1974, at 1–25. With his “reactive attitude” model, Strawson draws attention to the moral sentiments, introducing a naturalistic alternative to the question of responsibility that makes a break with its treatment in the modern tradition as a concept to be treated within a philosophy of free will.

8. Greene J, Cohen J. For the law, neuroscience changes nothing and everything. Philosophical Transactions of the Royal Society of London: Biological Sciences 2004:1775–85.

9. Morse, S. New neuroscience, old problems. In: Garland, B, ed. Neuroscience and the Law: Brain, Mind, and the Scales of Justice. New York: Dana Press; 2004.Google Scholar

10. The consequentialist approach views punishment as a technique for ensuring a safe social environment. The argument for this view draws on neuroscientific findings pointing to the fallacy of the naïve psychology on which rests the legal understanding of the person.

11. A case in point is H. L. A. Hart, who in Punishment and Responsibility stresses the need to distinguish two problems and to gauge their solutions accordingly: On the one hand is the problem of justifying punishment, and here he advocates a consequentialist approach predicated on the preventive purpose of punishment. On the other hand is the problem of who is to be punished, and here he advocates a retributive approach based on the assumption that punishment is to be inflicted on the offender. See Hart HLA. Punishment and Responsibility. Oxford: Clarendon Press; 1968.

12. On this question, see the compelling criticism the moral philosopher Harry Frankfurt has raised against the so-called alternate possibilities principle, under which you are morally responsible for something only if you could have acted otherwise. Frankfurt argues that even if this condition is not met, there is still a compensatory responsibility that can be attributed. See Frankfurt H. Alternate possibilities and moral responsibility. Journal of Philosophy 1969;23:829–39, at 830.

13. See Fischer, JM. Deep Control: Essays on Free Will and Value. New York and Oxford: Oxford University Press; 2011;Google Scholar Fischer, JM. Frankfurt-type examples and semi-compatibilism. In: Kane, R, ed. The Oxford Handbook of Free Will. Oxford: Oxford University Press; 2002: 281–307;Google Scholar and Fischer, JM, Ravizza, M. Responsibility and Control: A Theory of Moral Responsibility. Oxford: Oxford University Press; 1999.Google Scholar

14. See note 11, Hart 1968, at 256.

15. From a consequentialist perspective, our consideration of attenuating circumstances and moral desert in dealing with criminal responsibility should yield to greater stress on punishing itself as a tool by which to attain greater social well-being. See note 8, Greene, Cohen 2004.

16. See Morse, S. Moral and legal responsibility and the new neuroscience. In: Illes, J, ed. Neuroethics: Defining the Issues in Theory, Practise, and Policy. Oxford: Oxford University Press; 2006:33–50.Google Scholar

17. See Dworkin R. Justice for Hedgehogs. Cambridge, MA: Harvard University Press; 2011, at 260.

18. See Monti MM, et al. Willful modulation of brain activity in disorders of consciousness. New England Journal of Medicine 2010;362:579–89.

19. See note 2, Stins, Laureys 2009; See note 3, Libet, Gleason, Wright, Pearl. 1983.

20. Morse S. Brain overclaim syndrome and criminal responsibility: A diagnostic note. Ohio State Journal of Criminal Law 2006;3:397–412, at 405.

21. On this whole question, see Savulescu, J, Levy, N. Moral significance of phenomenal consciousness. Progress in Brain Research 2009;177:361–70.Google Scholar

22. See Dennett D. How could I be wrong? How wrong could I be? Journal of Consciousness Studies 2002;9(5–6):13–16; Dennett D. Consciousness Explained. Boston, New York, London: Little, Brown; 1991; Gazzaniga MS. The Ethical Brain. New York: Dana Press; 2005; Edelman GM. Naturalizing consciousness: A theoretical framework. PNAS 2003;100(9):5520–4.

23. See Rilling, JK, King-Casas, B, Sanfey, AG. The neurobiology of social decision-making. Current Opinions in Neurobiology 2008;18(2):159–65.CrossRefGoogle ScholarPubMed

24. Chalmers, D. The Conscious Mind: In Search of a Fundamental Theory. New York: Oxford University Press; 1996.Google Scholar

25. See Goodenough, OR, Prehn, K. A neuroscientific approach to normative judgment in law and justice. Philosophical Transactions of the Royal Society of London: Biological Sciences 2004;359:1709–26.Google ScholarPubMed