Determinism and the Death of Folk Psychology: Two Challenges to Responsibility from Neuroscience

Free will and human agency are considered foundational for ascriptions of criminal responsibility in Anglo-American jurisprudence. As United States Supreme Court Justice Oliver Wendell Holmes famously observed, "even a dog distinguishes major support from the law firm of Leonard, Street and Deinard, and then presented at a conference on "Neuroethics and Empirical Moral Psychology" at the Department of Philosophy, Classics, History of Art and Ideas of the University of Oslo. I would like to thank Leonard, Street and Deinard and Susan Wolf for their hospitality in Minneapolis, and Jakob Elster, Lene Bomann-Larsen and 0istein Schmidt Galaaen for their hospitality in Oslo. Thanks to Barry Feld, Vidar Halvorsen and Monica Luciano for helpful commentary. The paper was also presented at a symposium on "Neuroscience and Moral and Legal Responsibility" at the University of Cincinnati College of Law and School of Medicine, as a plenary address at the 2007 annual meeting of the Association for Politics and the Life Sciences, and as a lecture at the Sage Center for the Study of the Mind at the University of California, Santa Barbara. I thank all those at each of these venues who made helpful comments, especially John Bickle, Mike Gazzaniga and Douglas Mossman. I also thank Ed Greenlee for his invaluable assistance. As always, I thank my personal attorney, Jean Avnet Morse, for her sound, sober counsel and moral support. between being stumbled over and being kicked."1 And, as Justice Jackson wrote in Morissette v. U.S., concisely noting both conditions: The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory "But I didn't mean to" .... 2 Now, however, the discoveries of the new neuroscience challenge both foundations for responsibility. 3 The new neuroscience seems poised to demonstrate that our behavior is determined by physical events in the brain and that we therefore cannot be responsible. Neuroscientific discoveries also are alleged to demonstrate that mental states do not causally explain our behavior. If this is true, it provides another, independent ground for the claim that responsibility …