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15 June 2022
A Correction to this paper has been published: https://doi.org/10.1007/s11572-022-09636-6
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Selim Berker, “The Normative Insignificance of Neuroscience”, 37 Philosophy and Public Affairs 293, 294 (2009): “either attempts to derive normative implications from these neuroscientific results rely on a shoddy.
inference, or they appeal to substantive normative intuitions (usually about what sorts of features are or are not morally relevant) that render the neuroscientific results irrelevant to the overall argument.”.
See Berker, 328: “Suppose we have established that a certain region of the brain is activated when we contemplate a certain class of cases that yield characteristically deontological verdicts about what it is morally permissible to do. Suppose, also, that we have independent knowledge that in nonmoral cases this brain region is recruited to distinguish between (say) intentional and nonintentional action. Then we might try seeing whether what distinguishes this class of moral dilemmas from others has something to do with the intentional versus nonintentional action distinction. Since neuroscience only provides evidence of correlations, it is not certain that when the brain region in question is recruited for moral cases it is responding to the same sorts of features as when it is recruited for nonmoral cases. But the neuroscientific results can give us clues for where to look when trying to characterize what sorts of features out there in the world each moral faculty is responding to. And this is true whether our ultimate aim is to debunk or to vindicate those verdicts. However, note that, even here, the neuroscientific results play no role after we have the principles stating what sort of features each faculty is responding to: at that point, the argument for whether we should or should not discount the verdicts of one of these faculties proceeds entirely via armchair theorizing about whether the sorts of features to which that faculty is responding are or are not morally relevant.”.
I discuss these issues at length with Michael Pardo in Michael Pardo and Dennis Patterson, Minds, Brains, and Law (2015).
There is dissent. Stephen Morse has championed the view that neuroscience only confirms what we already know from behavior: “we assess all the criminal law’s behavioral criteria for responsibility primarily by considering evidence of the defendant’s conduct, including speech acts, and drawing inferences from that conduct. Based on the behavioral evidence, it seems patently obvious, and few commentators disagree, that most agents who appear to violate criminal prohibitions act intentionally, consciously, with the requisite mens rea, possess the capacity for rationality (by any sensible standard), and do not act under a hard choice threat.” Stephen Morse, “Brain Overclaim Syndrome and Criminal Responsibility: A Diagnostic Note,” 3 Ohio State Jl. Of Criminal Law 397, 400 (2006).
This is the “mereological fallacy” argument. See M.R. Bennett and P.M.S. Hacker, Philosophical Foundations of Neuroscience 68 – 85 (2003).
HFS report that Bert was prosecuted in Illinois. Under Illinois law, a person is guilty of child neglect if s/he “knowingly” leaves a child unattended for 24 h or more. Bert was found guilty and sentenced to probation.
HFS also discuss Fischer and Ravizza’s reasons responsiveness account of responsibility. See J.M. Fischer & M. Ravizza, Responsibility and Control: A Theory of Moral Responsibility (CUP 1998).
HFS write: “As we discussed in chapter 4, Hart argues that because capacity responsibility concerns a general ability to understand and conform one’s behavior to rules, it is a foundational requirement for the efficacy of law.” (p. 136).
Michael Moore (“Relating Neuroscience to Responsibility”), in this volume, is critical of the diachronic pivot in HFS’ argument. He seems to suggest that “ownership of agency” is key: “HSF do endow their actors responsible for negligence with a minimal working set of executive functions, yet if these are enough for the ownership of agency responsibility requires, and if one can have them without the three-fold efforts HSF require, then earning the ownership of agency drops out as a requirement of responsibility”.
See Neil Levy, Consciousness and Moral Responsibility (OUP, 2014).
Of course, the problem with Levy’s view is more basic. If he were right, then the entire law of negligence would be immoral because liability for (in)action is imposed without regard to conscious awareness. No one would ever be responsible for anything they were not directly aware of.
Dennis Patterson, “Consciousness and Moral Responsibility,” review of Neil Levy, Consciousness and Moral Responsibility (OUP, 2014) J Law Biosci. 2015 Nov; 2(3): 771–774.
To elaborate: “The reason we hold the tortfeasor (e.g., the owner of the aggressive dog) responsible is that it is the tortfeasor who is in the best position to prevent the harm. By failing to act properly—to exercise precaution—the tortfeasor causes harm to another. The moral ground of responsibility is not a function of what the tortfeasor knew. Rather, it is directly a matter of what the tortfeasor could and should have done by way of risk avoidance. Consciousness simply has little to do with this.” Patterson (2015) at 774.
H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (OUP 1968), cited and quoted in HFS 80 – 83.
HSF at 80.
For example the Wechsler Intelligence Scales or the Halstead-Reitan Neuropsychological Test Battery.
Stephen J. Morse, “Neuroscience and Criminal Law: Promises and Perils,” in L. Alexander and K. Ferzan, The Palgrave Handbook of Applied Ethics 483 (2019).
Morse at 483.
Put differently, one might ask “what was lacking in Hart’s account of capacity responsibility which lack was repaired by HFS?”.
For example, their treatment of solitary confinement and neuroscience is extremely interesting and potentially quite useful to penal authorities.
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Patterson, D. Inert. Criminal Law, Philosophy 16, 319–324 (2022). https://doi.org/10.1007/s11572-021-09572-x
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DOI: https://doi.org/10.1007/s11572-021-09572-x