CAN NEUROSCIENCECHANGE THE LAW?

A criticism of Greene & Cohen’s consequentialist hypothesis

1 – INTRODUCTION- The new neurosciences are having a double impact on the law: on the general conception of criminal

responsibility and on the concrete unfolding of legal practice (M. Gazzaniga 2008)- To what extent neuroscience (NS) can have a transformative effect on the law?- Greene and Cohen (2004) in reply to Morse (2001): NS will change the law by modifying common moral

intuitions about responsibility and punishment: NS will persuade people that nobody is genuinely morally responsible for her actions, and

therefore nobody deserves being punished for them this change in commonsense will pave the way to a conversion of our retributivist penal system

into a consequentialist one - Aim of this paper: to question the plausibility of Greene and Cohen (G&C)’s hypothesis about the

transformative impact of NS

4 – INTUITIVE INCOMPATIBILISM AND THE PRESERVATION OF RESPONSIBILITY ATTRIBUTIONS

- To say that commonsense is incompatibilist/libertarian means that the great majority of people: a) intuitively describe the universe as indeterministicb) when reasoning in abstract terms, think that it would be impossible to be morally responsible in

a deterministic universe- To say that commonsense is incompatibilist/libertarian does not mean that every attribution of

responsibility is made in accord with an incompatibilist theory of responsibility - To the contrary:

1) Scenarios generating an affective reaction (e.g., a man raping a woman) yield compatibilist responses - most people judge the criminal responsible irrespective of the truth of determinism (Nichols & Knobe 2007). VS G&C’s hypothesis: even if NS persuaded people of the truth of determinism, they would plausibly continue to hold responsible the authors of affect-eliciting crimes (not uncommon insofar as the penal system is concerned)

2) Scenarios taking place in a world referred to as hypothetical (‘alternate universe’) yield incompatibilist responses, whereas scenarios taking place in a world referred to as our own yield compatibilist responses: people prove far more attached to their attributions of responsibility when their personal life is potentially concerned (Roskies & Nichols 2008). VS G&C’s hypothesis: even if NS persuaded people of the truth of determinism, they would not plausibly give up their attributions of responsibility insofar as their real world and life are concerned

Stefano Cossara, Université Paris-Sorbonne

2 – SKEPTICISM ABOUT MORAL RESPONSIBILITY- G&C’s defense of moral responsibility skepticism via the ‘source incompatibilist argument’ (from

McKenna 2009, adapted): A person is truly morally responsible for her actions only if she is their ultimate source If determinism is true, no one is the ultimate source of her actions, because the facts of the past

prior to her birth, combined with the laws of nature, provide causally sufficient conditions for the production of her actions

Therefore, if determinism is true, no one is truly morally responsible for her actions

Note: indetermination (quantum physics) is of no help to moral responsibility, for it provides hazard, not control on one’s actions

- G&C’s prediction: the spread of neuroscientific knowledge will persuade laypersons of the soundness of this argument, prompting them to give up their attributions of responsibility and to accept that nobody deserves being punished. This will lead to a consequentialist reform of the penal system

3 – ATTACKING GREENE & COHEN’S ARGUMENT- Greene & Cohen’s argument for the change of commonsense:

Commonsense is libertarian: people think humans are morally responsible because they are not determined

NS will persuade people that libertarianism is false: humans are determined like the rest of the natural world

Therefore, people will infer that nobody is morally responsible

- Two strategies to challenge this argument:1) Show that the argument lacks premise warrant: first premise is false (Nahmias et al. 2006,

Nahmias & Murray forthcoming)2) Show that the argument lacks inference warrant: even if premises are taken for granted, the

conclusion does not follow (Nichols & Knobe 2007, Roskies & Nichols 2008, Sarkissian et al. forthcoming)

- In this paper strategy 2 is followed

5– WHAT ABOUT EPIPHENOMENALISM?- Nahmias (2006): people tend to give up their attributions of responsibility when exposed to scenarios involving neuro-reductionist determination rather than psychological determination- Does this support G&C’s hypothesis? NS might lead people to abandon their attributions of responsibility by persuading them of the truth of epiphenomenalism rather than determinism- The problem: in order to step from premise P (supported by Nahmias’s evidence) to conclusion C (required for G&C’s hypothesis to be plausible), an ancillary premise (AP1 or AP2 or AP3) is required that closes the gap between P and C

(P): People occasionally abandon their attributions of responsibility when exposed to neuro-reductionist descriptions of human behavior

.

. (AP1): And it will be enough to abandon them within the juridical practice OR

. (AP2): And they will come to be permanently and exclusively exposed to neuro-reductionist

. descriptions OR

. (AP3): And they will become capable of permanently abandoning them when reasoning in a cold

. and detached way

.(C): NS will prompt people to abandon their attributions of responsibility in the relevant way required to make a consequentialist reform viable

- (AP1) is problematic because it violates the principle (accepted by G&C) that the law must reflect common moral intuitions: if attributions of responsibility were ruled out from juridical practice while continuing to permeate everyday moral intuitions, this would open a gap between the two- (AP2) reflects the prediction of eliminative materialism with respect to the transformation of commonsense and ordinary language; it is problematic because this prediction itself enjoys little plausibility - (AP3), while appearing less problematic than (AP1) and (AP2), is unsupported by evidence: Nahmias’sexperiments show that people tend to give up attributions of responsibility when exposed to scenarios described in neuro-reductionist terms, not that they can interiorize a neuro-reductionist jargon to describe new scenarios and judge them accordingly; but this second and stronger contention is required to make G&C’s hypothesis plausible - Therefore, as each version of the ancillary premise appears problematic, conclusion (C) cannot be reached

6 – CONCLUSIONS- Data from experimental philosophy provide reason to believe that even though people came to be convinced of the truth of determinism by the spread of neuroscientific knowledge, they would not relinquish their attributions of responsibility (section 4) - Data showing that people tend to give up attributions of responsibility when exposed to neuro-reductionist descriptions of actions fall short of supporting G&C’s prediction in the fullest manner necessary for their hypothesis to be plausible (section 5)- On the whole, G&C’s hypothesis about the transformative role of NS with respect to commonsense and the law seems to lack plausibility

REFERENCES- M. Gazzaniga, ‘The Law and Neuroscience’, Neuron, 60 (2008), pp. 412-415- J. Greene, J. Cohen, ‘For the law, neuroscience changes nothing and everything’, Philosophical Transactions of the Royal Society of London, 359 (2004), pp. 1775–1785- M. Mckenna, Compatibilism, entry on the Stanford Encyclopedia of Philosophy (2004; revised 2009)- S. Morse, ‘New neuroscience, old problems’, in B. Garland (ed.), Neuroscience and the law: brain, mind, and the scales of justice, (Dana Press, 2001), pp. 157–198- E. Nahmias, ‘Folk Fears about Freedom and Responsibility: Determinism vs. Reductionism’, Journal of Cognition and Culture, 6 (2006), pp. 215-237- E. Nahmias, S. Morris, T. Nadelhoffer, J. Turner, ‘Is Incompatibilism Intuitive?’, Philosophy and Phenomenological Research, 73 (2006), pp. 28–53- E. Nahmias, D. Murray, ‘Experimental Philosophy on Free Will: An Error Theory for Incompatibilist Intuitions’, in J. Aguilar, A. Buckareff, K. Frankish (eds.), New Waves in Philosophy of Action, (Palgrave-MacMillan, forthcoming) - S. Nichols, J. Knobe, ‘Moral Responsibility and Determinism: The Cognitive Science of Folk Intuitions’, Nous, 41(2007), pp. 663–685- A. Roskies, S. Nichols, ‘Bringing Moral Responsibility Down to Earth’, Journal of Philosophy 105 (2008), pp. 371-388-H. Sarkissian, A. Chatterjee, F. De Brigard, J. Knobe, S. Nichols, S. Sirker, ‘Is Belief in Free Will a Cultural Universal?’, Mind & Language (forthcoming)

ACKNOWLEDGMENTSPrevious versions of this paper have been presented at the annual meeting of the EA 3559, Paris-Sorbonne University (January 2010) and at the Workshop ‘Philosophical implications of empirically informed ethics’, Zurich (March 2010). Thanks to the participants for their useful comments.