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Brain, Blame, and Responsibility

brain 2.jpgJustice Jackson had these wise words many years ago:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion.  It is 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. 
The elementary premise that most people, most of the time, have the ability to guide their behavior by bringing reason to bear on their conduct is firmly rooted in substantive criminal law.  The entrenched concepts of intentions, aforethought, and malice strongly suggests that the structure of our criminal law rests on the idea of human agency: That people evaluate the world, make choices, and impose those choices on the world.  When people offend the criminal code, they are properly held blameworthy because it is assumed that they could have chosen differently despite their personal genetic liability, propensities, and desires.

Anyone who has followed criminal law for some time knows that the findings in the behavioral sciences are often proffered by some as evidence that these basic assumptions in modern legal systems are fallacies.  People are said to be compelled into criminal behavior or genetically determined to act against the precepts of law.  We are said to have little, if any, ability to choose our conduct. 

The latest chapter of this story comes from the highly publicized area of neurolaw.  Applying cognitive neuroscience (and particularly brain scans) to legal questions of responsibility, neurolaw continues the mission of the hard determinists who claim that free will is an illusion, and therefore, Jackson, most substantive criminal law, and enduing cross-cultural intuitions of justice are flat-out wrong.

But despite all of the persuasive neuolaw talk (and pictures in particular) there are problems with the nurolaw model.  As I discuss in this Article, we should skeptical of these claims for a number of reasons.  Chief among them is the belief that a criminal code influenced by neuroscience would lend itself more easily to fairness, compassion, and mercy.  On the contrary, there is every reason to believe the opposite. 

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