Greene and Cohen

8/6/2019 Greene and Cohen

1/12

For the Law, Neuroscience Changes Nothing and EverythingAuthor(s): Joshua Greene and Jonathan CohenSource: Philosophical Transactions: Biological Sciences, Vol. 359, No. 1451, Law and the Brain(Nov. 29, 2004), pp. 1775-1785Published by: The Royal SocietyStable URL: http://www.jstor.org/stable/4142162

Accessed: 23/09/2010 16:55

Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available athttp://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless

you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you

may use content in the JSTOR archive only for your personal, non-commercial use.

Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at

http://www.jstor.org/action/showPublisher?publisherCode=rsl.

Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed

page of such transmission.

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of

content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms

of scholarship. For more information about JSTOR, please contact [email protected].

The Royal Society is collaborating with JSTOR to digitize, preserve and extend access to Philosophical

Transactions: Biological Sciences.

http://www.jstor.org
http://www.jstor.org/action/showPublisher?publisherCode=rslhttp://www.jstor.org/stable/4142162?origin=JSTOR-pdfhttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/action/showPublisher?publisherCode=rslhttp://www.jstor.org/action/showPublisher?publisherCode=rslhttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/stable/4142162?origin=JSTOR-pdfhttp://www.jstor.org/action/showPublisher?publisherCode=rsl


2/12

rmw p m

THE ROYALSOCIETY Publishedonline 26 November 2004

Forthe law, neuroscience changes nothingand everythingJoshua Greene* and Jonathan Cohen

DepartmentofPsychology, Center or theStudy ofBrain, Mind, and Behavior, PrincetonUniversity,Princeton,NJ 08544, USAThe rapidly growing field of cognitive neuroscience holds the promise of explaining the operations of themind in terms of the physical operations of the brain. Some suggest that our emerging understanding of thephysical causes of human (mis)behaviour will have a transformative effect on the law. Others argue that newneuroscience will provide only new details and that existing legal doctrine can accommodate whatever newinformation neuroscience will provide. We argue that neuroscience will probably have a transformativeeffect on the law, despite the fact that existing legal doctrine can, in principle, accommodate whateverneuroscience will tell us. New neuroscience will change the law, not by undermining its current assump-tions, but by transforming people's moral intuitions about free will and responsibility. This change in moraloutlook will result not from the discovery of crucial new facts or clever new arguments, but from a newappreciation of old arguments, bolstered by vivid new illustrations provided by cognitive neuroscience. Weforesee, and recommend, a shift away from punishment aimed at retribution in favour of a more progressive,consequentialist approach to the criminal law.

Keywords: law; brain; morality; free will; punishment; retributivism

1. INTRODUCTIONThe law takes a long-standing interest in the mind. In mostcriminal cases, a successful conviction requires the pros-ecution to establish not only that the defendant engaged inproscribed behaviour, but also that the misdeed in questionwas the product of mens rea, a 'guilty mind'. Narrowlyinterpreted, mens rea refers to the intention to commit acriminal act, but the term has a looser interpretation bywhich it refers to all mental states consistent with moraland/or legal blame. (A killing motivated by insane delu-sional beliefs may meet the requirements for mens reain thefirst sense, but not the second.) (Goldstein et al. 2003)Thus, for centuries, many legal issues have turned on thequestion: 'what was he thinking?'.To answer this question, the law has often turned toscience. Today, the newest kid on this particular scientificblock is cognitive neuroscience, the study of the mindthrough the brain, which has gained prominence in part asa result of the advent of functional neuroimaging as awidely used tool for psychological research. Given the law'saforementioned concern for mental states, along with itspreference for 'hard' evidence, it is no surprise that interestin the potential legal implications of cognitive neuroscienceabounds. But does our emerging understanding of themind as brain really have any deep implications for the law?This theme issue is a testament to the thought that it might.Some have argued, however, that new neuroscience con-tributes nothing more than new details and that existing

legal principles can handle anything that neuroscience willthrow our way in the foreseeable future (Morse 2004).In our view, both of these positions are, in theirrespective ways, correct. Existing legal principles makevirtually no assumptions about the neural bases of crimi-nal behaviour, and as a result they can comfortablyassimilate new neuroscience without much in the way ofconceptual upheaval: new details, new sources of evi-dence, but nothing for which the law is fundamentallyunprepared. We maintain, however, that our operativelegal principles exist because they more or less adequatelycapture an intuitive sense of justice. In our view, neu-roscience will challenge and ultimately reshape our intuit-ive sense(s) of justice. New neuroscience will affect theway we view the law, not by furnishing us with new ideasor arguments about the nature of human action, but bybreathing new life into old ones. Cognitive neuroscience,by identifying the specific mechanisms responsible forbehaviour, will vividly illustrate what until now couldonly be appreciated through esoteric theorizing: thatthere is something fishy about our ordinary conceptionsof human action and responsibility, and that, as a result,the legal principles we have devised to reflect these con-ceptions may be flawed.Our argument runs as follows: first, we draw a familiardistinction between the consequentialist justification forstate punishment, according to which punishment ismerely an instrument for promoting future social welfare,and the retributivist justification for punishment, accordingto which the principal aim of punishment is to give peoplewhat they deserve based on their past actions. We observethat the common-sense approach to moral and legalresponsibility has consequentialist elements, but is largelyretributivist. Unlike the consequentialist justification for

*Author for correspondence ([email protected]).One contribution of 16 to a Theme Issue 'Law and the brain'.Phil. Trans.R. Soc. Lond.B (2004) 359, 1775-1785doi: 10. 1098/rstb.2004.1546 1775 C 2004 TheRoyalSociety


3/12


4/12

Neuroscience hangesnothingandeverything J. Greene and J.Cohen 1777

explicate this theory in terms of criminals' forfeiting rights,others in terms of the rights of the victimized, whereasothers would appeal to the violation of a hypothetical socialcontract, and so on. Retributivist theories come in manyflavours, but these distinctions need not concern us here.What is important for our purposes is that retributivismcaptures the intuitive idea that we legitimately punish togive people what they deserve based on their past actions--in proportion to their 'internal wickedness', to use Kant's(2002) phrase-and not, primarily, to promote social wel-fare in the future.

The retributivist perspective is widespread, both in theexplicit views of legal theorists and implicitly in commonsense. There are two primary motivations for questioningretributivist theory. The first, which will not concern ushere, comes from a prior commitment to a broader con-sequentialist moral theory. The second comes from scepti-cism regarding the notion of desert, grounded in a broaderscepticism about the possibility of free will in a determinis-tic or mechanistic world.

3. FREEWILLANDRETRIBUTIVISMThe problem of free will is old and has many formulations(Watson 1982). Here is one, drawing on a more detailedand exacting formulation by Peter Van Inwagen (1982):determinism is true if the world is such that its current stateis completely determined by (i) the laws of physics and (ii)past states of the world. Intuitively, the idea is that a deter-ministic universe starts however it starts and then ticksalong like clockwork from there. Given a set of priorconditions in the universe and a set of physical laws thatcompletely govern the way the universe evolves, there isonly one way that things can actually proceed.Free will, it is often said, requires the ability do otherwise(an assumption that has been questioned; Frankfurt 1966).One cannot say, for example, that I have freely chosen soupover salad if forces beyond my control are sufficient tonecessitate my choosing soup. But, the determinist argues,this is precisely what forces beyond your control do-always. You have no say whatsoever in the state of the uni-verse before your birth; nor do you have any say about thelaws of physics. However, if determinism is true, these twothings together are sufficient to determine your choice ofsoup over salad. Thus, some say, if determinism is true,your sense of yourself and others as having free will is anillusion.

There are three standard responses to the problem offree will. The first, known as 'hard determinism', acceptsthe incompatibility of free will and determinism ('incompa-tibilism'), and asserts determinism, thus rejecting free will.The second response is libertarianism (again, no relation tothe political philosophy), which accepts incompatibilism,but denies that determinism is true. This may seem like apromising approach. After all, has not modern physicsshown us that the universe is indeterministic (Hughs1992)? The problem here is that the sort of indeterminismafforded by modern physics is not the sort the libertarianneeds or desires. If it turns out that your ordering soup iscompletely determined by the laws of physics, the state ofthe universe 10 000 years ago, and the outcomes of myriadsubatomic coin flips, your appetizer is no more freely cho-sen than before. Indeed, it is randomly chosen, which is no

help to the libertarian. What about some other kind ofindeterminism? What if, somewhere deep in the brain,there are mysterious events that operate independently ofthe ordinary laws of physics and that are somehow tied tothe will of the brain's owner? In light of the available evi-dence, this is highly unlikely. Say what you will about the'hard problem' of consciousness (Shear 1999), there is nota shred of scientific evidence to support the existence ofcausally effectiveprocesses in the mind or brain that violatethe laws of physics. In our opinion, any scientificallyrespectable discussion of free will requires the rejection ofwhat Strawson (1962) famously called the 'panicky meta-physics' of libertarianism.1Finally, we come to the dominant view among philoso-phers and legal theorists: compatibilism. Compatibilistsconcede that some notions of free will may require indefen-sible, panicky metaphysics, but maintain that the kinds offree will 'worth wanting', to use Dennett's (1984) phrase,are perfectly compatible with determinism. Compatibilisttheories vary, but all compatibilists agree that free will is aperfectly natural, scientifically respectable phenomenonand part of the ordinary human condition. They also agreethat free will can be undermined by various kinds ofpsychological deficit, e.g. mental illness or 'infancy'. Thus,according to this view, a freely willed action is one that ismade using the right sort of psychology-rational, free ofdelusion, etc.

Compatibilists make some compelling arguments. Afterall, is it not obvious that we have free will? Could scienceplausibly deny the obvious fact that I am free to raise myhand at will? For many people, such simple observationsmake the reality of free will non-negotiable. But at the sametime, many such people concede that determinism, orsomething like it, is a live possibility. And if free will is obvi-ously real, but determinism is debatable, then the reality offree will must not hinge on the rejection of determinism.That is, free will and determinism must be compatible.Many compatibilists sceptically ask what would it mean togive up on free will. Were we to give it up, wouldn't we haveto immediately reinvent it? Does not every decision involvean implicit commitment to the idea of free will? And howelse would we distinguish between ordinary rational adultsand other individuals, such as young children and the men-tally ill, whose will-or whatever you want to call it-isclearly compromised? Free will, compatibilists argue, ishere to stay, and the challenge for science is to figure outhow exactly it works and not to peddle silly arguments thatdeny the undeniable (Dennett 2003).The forward-looking-consequentialist approach to pun-ishment works with all three responses to the problem offree will, including hard determinism. This is because con-sequentialists are not concerned with whether anyone isreally innocent or guilty in some ultimate sense that mightdepend on people's having free will, but only with the likelyeffects of punishment. (Of course, one might wonder whatit means for a hard determinist to justify any sort of choice.We will return to this issue in ? 8.) The retributivistapproach, by contrast, is plausibly regarded as requiringfree will and the rejection of hard determinism. Retributi-vists want to know whether the defendant truly deservestobe punished. Assuming one can deserve to be punishedonly for actions that are freely willed, hard determinismimplies that no one really deserves to be punished. Thus,

Phil. Trans.R. Soc.Lond.B (2004)


5/12

1778 J. Greene and J. Cohen Neurosciencehangesnothingandeverything

hard determinism combined with retributivism requiresthe elimination of all punishment, which does not seemreasonable. This leaves retributivists with two options:compatibilism and libertarianism. Libertarianism, for rea-sons given above, and despite its intuitive appeal, is scien-tifically suspect. At the very least, the law should notdepend on it. It seems, then, that retributivism requirescompatibilism. Accordingly, the standard legal account ofpunishment is compatibilist.

4. NEUROSCIENCECHANGESNOTHINGThe title of a recent paper by Stephen Morse (2004), 'Newneuroscience, old problems', aptly summarizes many a sea-soned legal thinker's response to the suggestion that brainresearch will revolutionize the law. The law has been deal-ing with issues of criminal responsibility for a long time,Morse argues that there is nothing on the neuroscientifichorizon that it cannot handle.The reason that the law is immune to such threats is thatit makes no assumptions that neuroscience, or any science,is likely to challenge. The law assumes that people have ageneral capacity for rational choice. That is, people havebeliefs and desires and are capable of producing behaviourthat serves their desires in light of their beliefs. The lawacknowledges that our capacity for rational choice is farfrom perfect (Kahneman & Tversky 2000), requiring onlythat the people it deems legally responsible have a generalcapacity for rational behaviour.

Thus, questions about who is or is not responsible in theeyes of the law have and will continue to turn on questionsabout rationality. This approach was first codified in theM'Naghten standard according to which a defence on theground of insanity requires proof that the defendantlaboured under 'a defect of reason, from disease of themind' (Goldstein 1967). Not all standards developed andapplied since M'Naghten explicitly mention the need todemonstrate the defendant's diminished rationality (e.g.the Durham standard; Goldstein 1967), but it is generallyagreed that a legal excuse requires a demonstration that thedefendant 'lacked a general capacity for rationality' (Gold-stein et al. 2003). Thus, the argument goes, new sciencecan help us figure out who was or was not rational at thescene of the crime, much as it has in the past, but newscience will not justify any fundamental change in the law'sapproach to responsibility unless it shows that people ingeneral fail to meet the law's very minimal requirements forrationality. Science shows no sign of doing this, and thusthe basic precepts of legal responsibility stand firm. As forneuroscience more specifically, this discipline seemsespecially unlikely to undermine our faith in general mini-mal rationality. If any sciences have an outside chance ofdemonstrating that our behaviour is thoroughly irrationalor arational it is the ones that study behaviour directlyrather than its proximate physical causes in the brain. Thelaw, this argument continues, does not care if people have'free will' in any deep metaphysical sense that might bethreatened by determinism. It only cares that people ingeneral are minimally rational. So long as this appears to bethe case, it can go on regarding people as free (compatibi-lism) and holding ordinary people responsible for their mis-deeds while making exceptions for those who fail to meetthe requirements of general rationality.

In light of this, one might wonder what all the fuss isabout. If the law assumes nothing more than general mini-mal rationality, and neuroscience does nothing to under-mine this assumption, then why would anyone even thinkthat neuroscience poses some sort of threat to legal doc-trines of criminal responsibility? It sounds like this is just asimple mistake, and that is precisely what Morse contends.He calls this mistake 'the fundamental psycholegal error'which is 'to believe that causation, especially abnormalcausation, is per se an excusing condition' (Morse 2004, p.180). In other words, if you think that neuro-scientific information about the causes of human action, orsome particular human's action, can, by itself, make for alegitimate legal excuse, you just do not understand the law.Every action is caused by brain events, and describing thoseevents and affirming their causal efficacy is of no legal inter-est in and of itself. Morse continues, '[The psycholegalerror] leads people to try to create a new excuse every timean allegedly valid new "syndrome" is discovered that isthought to play a role in behaviour. But syndromes andother causes do not have excusing force unless they suffi-ciently diminish rationality in the context in question'(Morse 2004, p. 180).In our opinion, Morse and like-minded theorists areabsolutely correct about the relationship between currentlegal doctrine and any forthcoming neuroscientific results.For the law, as written, neuroscience changes nothing. Thelaw provides a coherent framework for the assessment ofcriminal responsibility that is not threatened by anythingneuroscience is likely to throw at it. But, we maintain, thelaw nevertheless stands on shakier ground than the forego-ing would suggest. The legitimacy of the law itself dependson its adequately reflecting the moral intuitions and com-mitments of society. If neuroscience can change thoseintuitions, then neuroscience can change the law.As it happens, this is a possibility that Morse explicitlyacknowledges. However, he believes that such develop-ments would require radical new ideas that we can scarcelyimagine at this time, e.g. a new solution to the mind-bodyproblem. We disagree. The seeds of discontent are alreadysown in common-sense legal thought. In our opinion, the'fundamental psycholegal error' is not so much an error asa reflection of the gap between what the law officially caresabout and what people really care about. In modern crimi-nal law, there has been a long tense marriage of con-venience between compatibilist legal principles andlibertarian moral intuitions. New neuroscience, we argue,will probably render this marriage unworkable.

5. WHATREALLYMATTERSFORRESPONSIBILITY?MATERIALISTHEORY,DUALIST NTUITIONS NDTHE BOYSFROMBRAZIL'PROBLEMAccording to the law, the central question in a case of puta-tive diminished responsibility is whether the accused wassufficiently rational at the time of the misdeed in question.We believe, however, that this is not what most peoplereally care about, and that for them diminished rationalityis just a presumed correlate of something deeper. It seemsthat what many people really want to know is: was it reallyhim? This question usually comes in the form of a disjunc-tion, depending on how the excuse is constructed: was ithim, or was it his upbringing? Was it him, or was it his genes?

Phil. Trans.R. Soc. Lond. B (2004)


6/12

Neuroscience hangesnothingandeverything J. Greene and J. Cohen 1779

Was it him, or was it his circumstances?Was it him, or was ithis brain? But what most people do not understand, despitethe fact that naturalistic philosophers and scientists havebeen saying it for centuries, is that there is no 'him' inde-pendent of these other things. (Or, to be a bit more accom-modating to the supernaturally inclined, there is no 'him'independent of these things that shows any sign of affectinganything in the physical world, including his behaviour.)Most people's view of the mind is implicitly dualist andlibertarian and not materialist and compatibilist.Dualism, forour purposes, is the view that mind and brain are separate,interacting, entities.2 Dualism fits naturally with liber-tarianism because a mind distinct from the body is pre-cisely the sort of non-physical source of free will thatlibertarianism requires. Materialism, by contrast, is theview that all events, including the operations of the mind,are ultimately operations of matter that obeys the laws ofphysics. It is hard to imagine a belief in free will that ismaterialist but not compatibilist, given that ordinary mat-ter does not seem capable of supplying the non-physicalprocesses that libertarianism requires.

Many people, particularly those who are religious, areexplicitly dualist libertarians (again, not in the politicalsense). However, in our estimation, even people who do orwould readily endorse a thoroughly material account ofhuman action and its causes have dualist, libertarian intui-tions. This goes not only for educated people in general,but for experts in mental health and criminal behaviour.Consider, for example, the following remarks from Jona-than Pincus, an expert on criminal behaviour and the brain.

When a composerconceivesa symphony, he onlywayhe orshe canpresent t to thepublic s throughanorchestra...Iftheperformances poor, the faultcould lie with the composer'sconception,ortheorchestra, rboth... Will s expressed ythebrain.Violencecanbe theresultofvolitiononly,butifa brainsdamaged,brain failuremust be at least partly to blame.(Pincus 2001, p. 128)

To our untutored intuitions, this is a perfectly sensibleanalogy, but it is ultimately grounded in a kind of dualismthat is scientifically untenable. It is not as if there is you, thecomposer, and then your brain, the orchestra. You areyourbrain, and your brain is the composer and the orchestra allrolled together. There is no little man, no 'homunculus', inthe brain that is the real you behind the mass of neuronalinstrumentation. Scientifically minded philosophers havebeen saying this ad nauseum (Dennett 1991), and we willnot belabour the point. Moreover, we suspect that if youwere to ask Dr Pincus whether he thinks there is a little con-ductor directing his brain's activity from within or beyondhe would adamantly deny that this is the case. At the sametime, though, he is comfortable comparing a brain-damaged criminal to a healthy conductor saddled with anunhealthy orchestra. This sort of doublethink is notuncommon. As we will argue in ? 7, when it comes to moralresponsibility in a physical world, we are all of two minds.A recent article by Laurence Steinberg and ElizabethScott (Steinberg & Scott 2003), experts respectively onadolescent developmental psychology and juvenile law,illustrates the same point. They argue that adolescents donot meet the law's general requirements for rationality andthat therefore they should be considered less than fullyresponsible for their actions and, more specifically,

unsuitable candidates for the death penalty. Their mainargument is sound, but they cannot resist embellishing itwith a bit of superfluous neuroscience.

Most of the developmentalesearch n cognitiveand psycho-social functioning n adolescencemeasuresbehaviors,self-perceptions, rattitudes,butmountingevidence uggests hatatleastsome of thedifferences etweenadultsandadolescentshave neuropsychologicalnd neurobiological nderpinnings.(Steinberg & Scott 2003, p. 5)

Some of the differences? Unless some form of dualism iscorrect, every mental difference and every difference inbehavioural tendency is a function of some kind of differ-ence in the brain. But here it is implicitly suggested thatthings like 'behaviours, self-perceptions, or attitudes' maybe grounded in something other than the brain. In sum-ming up their case, Steinberg and Scott look towards thefuture.

Especially eededarestudies hat inkdevelopmentalhangesin decision making to changes in brain structure andfunction... In our view, however,there is sufficient ndirectsuggestive videnceof agedifferencesn capacitieshatarerel-evant o criminal lameworthinesso support heposition hatyouthswho commitcrimesshouldbe punishedmore enientlythentheiradultcounterparts.(Steinberg & Scott 2003, p. 9)

This gets the order of evidence backwards. If what thelaw ultimately cares about is whether adolescents canbehave rationally, then it is evidence concerning adolescentbehaviour that is directlyrelevant. Studying the adolescentbrain is a highly indirectway of figuring out whether adoles-cents in general are rational. Indeed, the only way we neu-roscientists can tell if a brain structure is important forrational judgement is to see if its activity or damage is corre-lated with (ir)rational behaviour.3If everyone agrees that what the law ultimately caresabout is the capacity for rational behaviour, then why areSteinberg and Scott so optimistic about neuroscientific evi-dence that is only indirectly relevant? The reason, we sug-gest, is that they are appealing not to a legal argument, butto a moral intuition. So far as the law is concerned, infor-mation about the physical processes that give rise to badbehaviour is irrelevant. But to people who implicitly believethat real decision-making takes place in the mind, not inthe brain, demonstrating that there is a brain basis for ado-lescents' misdeeds allows us to blame adolescents' brainsinstead of the adolescents themselves.

The fact that people are tempted to attach great moral orlegal significance to neuroscientific information that,according to the letter of the law, should not matter, sug-gests that what the law cares about and what people careabout do not necessarily coincide. To make this point in amore general way, we offer the following thought experi-ment, which we call 'The Boys from Brazil problem'. It is anextension of an argument that has made the rounds inphilosophical discussions of free will and responsibility(Rosen 2002).In the film TheBoys from Brazil, members of the Nazi oldguard have regrouped in South America after the war.Their plan is to bring their beloved fiihrer back to life byraising children genetically identical to Hitler (courtesy ofsome salvaged DNA) in environments that mimic that ofHitler's upbringing. For example, Hitler's father died while



7/12

1780 J. Greene and J. Cohen Neurosciencehangesnothingandeverything

young Adolph was still a boy, and so each Hitler clone'ssurrogate father is killed at just the right time, and so on,and so forth.

This is obviously a fantasy, but the idea that one could, inprinciple, produce a person with a particular personalityand behavioural profile through tight genetic and environ-mental control is plausible. Let us suppose, then, that agroup of scientists has managed to create an individual-call him 'Mr Puppet'-who, by design, engages in somekind of criminal behaviour: say, a murder during a drugdeal gone bad. The defence calls to the stand the project'slead scientist: 'Please tell us about your relationship toMr Puppet...'It is very simple,really.I designedhim. I carefully electedeverygene in his body and carefully criptedeverysignificanteventin his life so thathe wouldbecomepreciselywhathe istoday.I selectedhismotherknowinghatshewould et himcryforhoursandhoursbeforepickinghimup. I carefullyelectedeachof his relatives, eachers, riends,enemies,etc. and toldthemexactlywhatto sayto himandhowto treathim. Thingsgenerallywent as planned,but not always.For example, heangry etterswritten o his deadfatherwerenot supposed oappearuntilhe wasfourteen,but by the end of his thirteenthyearhe hadalreadywritten ourof them.In retrospect thinkthis was because of a handfulof substitutions made to hiseighthchromosome.At anyrate,myplansforhim succeeded,as theyhave for95%of the peopleI'vedesigned. assureyouthat heaccuseddeserves one ofthecredit.

What to do with Mr Puppet? Insofar as we believe thistestimony, we are inclined to think that Mr Puppet cannotbe held fully responsible for his crimes, if he can be heldresponsible for them at all. He is, perhaps, a man to befeared, and we would not want to return him to the streets.But given the fact that forces beyond his control played adominant role in causing him to commit these crimes, it ishard to think of him as anything more than a pawn.But what does the law say about Mr Puppet? The lawasks whether or not he was rational at the time of his mis-deeds, and as far as we know he was. For all we know, he ispsychologically indistinguishable from the prototypicalguilty criminal, and therefore fully responsible in the eyesof the law. But, intuitively, this is not fair.Thus, it seems that the law's exclusive interest in ration-ality misses something intuitively important. In our opi-nion, rationality is just a presumed correlate of what mostpeople really care about. What people really want to knowis if the accused, as opposed to something else, is respon-sible for the crime, where that 'something else' could be theaccused's brain, genes or environment. The question ofsomeone's ultimate responsibility seems to turn, intuit-ively, on a question of internal versus external determi-nation. Mr Puppet ought not be held responsible for hisactions because forces beyond his control played a domi-nant role in the production of his behaviour. Of course, thescientists did not have complete control-after all, they hada 5% failure rate--but that does not seem to be enough torestore Mr Puppet's free will, at least not entirely. Yes, he isas rational as other criminals, and, yes, it was his desiresand beliefs that produced his actions. But those beliefs anddesires were rigged by external forces, and that is why,intuitively, he deserves our pity more than our moral con-demnation.4

The story of Mr. Puppet raises an important question:what is the difference between Mr Puppet and anyone elseaccused of a crime? After all, we have little reason to doubtthat (i) the state of the universe 10 000 years ago, (ii) thelaws of physics, and (iii) the outcomes of random quantummechanical events are together sufficient to determineeverything that happens nowadays, including our ownactions. These things are all clearly beyond our control. Sowhat is the real difference between us and Mr Puppet? Oneobvious difference is that Mr Puppet is the victim of a dia-bolical plot whereas most people, we presume, are not. Butdoes this matter? The thought that Mr Puppet is not fullyresponsible depends on the idea that his actions were exter-nally determined. Forces beyond his control constrainedhis personality to the point that it was 'no surprise' that hewould behave badly. But the fact that these forces are con-nected to the desires and intentions of evil scientists isreally irrelevant, is it not? What matters is only that theseforces are beyond Mr Puppet's control, that they're notreally his. The fact that someone could deliberately harnessthese forces to reliably design criminals is an indication ofthe strength of these forces, but the fact that these forcesare being guided by other minds rather than simply operat-ing on their own seems irrelevant, so far as Mr Puppet'sfreedom and responsibility are concerned.

Thus, it seems that, in a very real sense, we are all pup-pets. The combined effects of genes and environmentdetermine all of our actions. Mr Puppet is exceptional onlyin that the intentions of other humans lie behind his genesand environment. But, so long as his genes and environ-ment are intrinsically comparable to those of ordinarypeople, this does not really matter. We are no more freethan he is.What all of this illustrates is that the 'fundamental psy-cholegal error' is grounded in a powerful moral intuitionthat the law and allied compatibilist philosophies try tosweep under the rug. The foregoing suggests that peopleregard actions only as fully free when those actions are seenas robust against determination by external forces. But ifdeterminism (or determinism plus quantum mechanics) istrue, then no actions are truly free because forces beyondour control are always sufficient to determine behaviour.Thus, intuitive free will is libertarian, not compatibilist.That is, it requires the rejection of determinism and animplicit commitment to some kind of magical mental caus-ation.5Naturalistic philosophers and scientists have known for along time that magical mental causation is a non-starter.But this realization is the result of philosophical reflectionabout the nature of the universe and its governance byphysical law. Philosophical reflection, however, is not theonly way to see the problems with libertarian accounts offree will. Indeed, we argue that neuroscience can helppeople appreciate the mechanical nature of human actionin a way that bypasses complicated arguments.

6. NEUROSCIENCEANDTHETRANSPARENTBOTTLENECKWe have argued that, contrary to legal and philosophicalorthodoxy, determinism really does threaten free will and

responsibility as we intuitively understand them. It is justthat most of us, including most philosophers and legalPhil. Trans.R. Soc. Lond.B (2004)


8/12

Neuroscience hangesnothingand everything J. Greene and J. Cohen 1781

theorists, have yet to appreciate it. This controversial opi-nion amounts to an empirical prediction that may or maynot hold: as more and more scientific facts come in, provid-ing increasingly vivid illustrations of what the human mindis really like, more and more people will develop moralintuitions that are at odds with our current social practices(see Robert Wright (1994) for similar thoughts).Neuroscience has a special role to play in this process forthe following reason. As long as the mind remains a blackbox, there will always be a donkey on which to pin dualistand libertarian intuitions. For a long time, philosophicalarguments have persuaded some people that human actionhas purely mechanical causes, but not everyone cares forphilosophical arguments. Arguments are nice, but physicaldemonstrations are far more compelling. What neuro-science does, and will continue to do at an acceleratedpace, is elucidate the 'when', 'where' and 'how' of themechanical processes that cause behaviour. It is one thingto deny that human decision-making is purely mechanicalwhen your opponent offers only a general, philosophicalargument. It is quite another to hold your ground whenyour opponent can make detailed predictions about howthese mechanical processes work, complete with images ofthe brain structures involved and equations that describetheir function.6

Thus, neuroscience holds the promise of turning theblack box of the mind into a transparentbottleneck.Thereare many causes that impinge on behaviour, but all ofthem-from the genes you inherited, to the pain in yourlower back, to the advice your grandmother gave you whenyou were six-must exert their influence through the brain.Thus, your brain serves as a bottleneck for all the forcesspread throughout the universe of your past that affect whoyou are and what you do. Moreover, this bottleneck con-tains the events that are, intuitively, most critical for moraland legal responsibility, and we may soon be able toobserve them closely.At some time in the future we may have extremely high-resolution scanners that can simultaneously track theneural activity and connectivity of every neuron in a humanbrain, along with computers and software that can analyseand organize these data. Imagine, for example, watching afilm of your brain choosing between soup and salad. Theanalysis software highlights the neurons pushing for soup inred and the neurons pushing for salad in blue. You zoom inand slow down the film, allowing yourself to trace thecause-and-effect relationships between individual neu-rons-the mind's clockwork revealed in arbitrary detail.You find the tipping-point moment at which the blue neu-rons in your prefrontal cortex out-fire the red neurons, seiz-ing control of your pre-motor cortex and causing you tosay, 'I will have the salad, please'.At some further point this sort of brainware may be verywidespread, with a high-resolution brain scanner in everyclassroom. People may grow up completely used to the ideathat every decision is a thoroughly mechanical process, theoutcome of which is completely determined by the resultsof prior mechanical processes. What will such people thinkas they sit in their jury boxes? Suppose a man has killed hiswife in a jealous rage. Will jurors of the future wonder whe-ther the defendant acted in that moment of his ownfree will?Will they wonder if it was really him who killed his wiferather than his uncontrollableanger?Will they ask whether

he couldhave done otherwise?Whether he really deserves o bepunished, or if he is just a victim of unfortunate circum-stances? We submit that these questions, which seem soimportant today, will lose their grip in an age when themechanical nature of human decision-making is fullyappreciated. The law will continue to punish misdeeds, asit must for practical reasons, but the idea of distinguishingthe truly, deeply guilty from those who are merely victimsof neuronal circumstances will, we submit, seem pointless.At least in our more reflective moments. Our intuitivesense of free will runs quite deep, and it is possible that wewill never be able to fully talk ourselves out of it. Next weconsider the psychological origins of the problem of freewill.

7. FOLKPSYCHOLOGYANDFOLKPHYSICSCOLLIDE:A COGNITIVE CCOUNTOF THEPROBLEMOFATTRIBUTIVE REEWILLCould the problem of free will just melt away? This ques-tion begs another: why do we have the problem of free willin the first place? Why does the idea of a deterministic uni-verse seem to contradict something important in our con-ception of human action? A promising answer to thisquestion is offered by Daniel Wegner in The illusion of con-scious will (Wegner 2002). In short, Wegner argues, we feelas if we are uncaused causers, and therefore granted adegree of independence from the deterministic flow of theuniverse, because we are unaware of the deterministic pro-cesses that operate in our own heads. Our actions appear tobe caused by our mental states, but not by physical states ofour brains, and so we imagine that we are metaphysicallyspecial, that we are non-physical causes of physical events.This belief in our specialness is likely to meet the same fateas other similarly narcissistic beliefs that we have cherishedin our past: that the Earth lies at the centre of the universe,that humans are unrelated to other species, that all of ourbehaviour is consciously determined, etc. Each of thesebeliefs has been replaced by a scientific and humblingunderstanding of our place in the physical universe, andthere is no reason to believe that the case will be any differ-ent for our sense of free will. (For similar thoughts, seeWright (1994) on Darwin's clandestine views about freewill and responsibility.)We believe that Wegner's account of the problem of freewill is essentially correct, although we disagree stronglywith his conclusions concerning its (lack of) practical moralimplications (see below). In this section we pick up on andextend one strand in Wegner's argument (Wegner 2002,pp. 15-28). Wegner's primary aim is to explain, in psycho-logical terms, why we attribute free will to ourselves, whywe feel free from the inside. Our aim in this section is toexplain, in psychological terms, why we insist on attribu-ting free will to others-and why scientifically minded philo-sophers, despite persistent efforts, have managed to talkalmost no one out of this practice. The findings we reviewserve as examples of how psychological and neuroscientificdata are beginning to characterize the mechanisms thatunderlie our sense of free will, how these mechanisms canlead us to assume free will is operating when it is not, andhow a scientific understanding of these mechanisms canserve to dismantle our commitment to the idea of free will.

Phil. Trans.R.Soc.Lond.B (2004)


9/12

1782 J. Greene andJ. Cohen Neurosciencehangesnothingandeverything

Looking out at the world, it appears to contain two fun-damentally different kinds of entity. On the one hand, thereare ordinary objects that appear to obey the ordinary lawsof physics: things like rocks and puddles of water andblocks of wood. These things do not get up and movearound on their own. They are, in a word, inanimate. Onthe other hand, there are things that seem to operate bysome kind of magic. Humans and other animals, so long asthey are alive, can move about at will, in apparent defianceof the physical laws that govern ordinary matter. Becausethings like rocks and puddles, on the one hand, and miceand humans, on the other, behave in such radically differ-ent ways, it makes sense, from an evolutionary perspective,that creatures would evolve separate cognitive systems forprocessing information about each of these classes ofobjects (Pinker 1997). There is a good deal of evidence tosuggest that this is precisely how our minds work.A line of research beginning with Fritz Heider illustratesthis point. Heider and Simmel (Heider & Simmel 1944)created a film involving three simple geometric shapes thatmove about in various ways. For example, a big trianglechases a little circle around the screen, bumping into it.The little circle repeatedly moves away, and a little trianglerepeatedly moves in between the circle and the big triangle.When normal people watch this movie they cannot helpbut view it in social terms (Heberlein & Adolphs 2004).They see the big triangle as trying to harm the little circle,and the little triangle as trying to protectthe little circle; andthey see the little circle as afraid and the big triangle asfrus-trated. Some people even spontaneously report that the bigtriangle is a bully. In other words, simple patterns of move-ment trigger in people's minds a cascade of complex socialinferences. People not only see these shapes as 'alive'. Theysee beliefs, desires, intentions, emotions, personality traitsand even moral blameworthiness. It appears that this kindof inference is automatic (Scholl & Tremoulet 2000). Ofcourse, you, the observer, know that it is only a film, and avery simple one at that, but you nevertheless cannot helpbut see these events in social, even moral, terms.That is, unless you have damage to your amygdala, asubcortical brain structure that is important for social cog-nition (Adolphs 1999). Andrea Heberlein tested a patientwith rare bilateral amygdala damage using Heider's filmand found that this patient, unlike normal people,described what she saw in completely asocial terms, despitethat fact that her visual and verbal abilities are not compro-mised by her brain damage. Somehow, this patient is blindto the 'human' drama that normal people cannot help butsee in these events (Heberlein & Adolphs 2004).The sort of thinking that is engaged when normal peopleview the Heider-Simmel film is sometimes known as'folk psychology' (Fodor 1987), 'the intentional stance'(Dennett 1987) or 'theory of mind', (Premack &Woodruff 1978). There is a fair amount of evidence(including the work described above) suggesting thathumans have a set of cognitive subsystems that are specia-lized for processing information about intentional agents(Saxe et al. 2004). At the same time, there is evidence tosuggest that humans and other animals also have sub-systems specialized for 'folk physics', an intuitive sense ofhow ordinary matter behaves. One compelling piece of evi-dence for the claim that normal humans have subsystemsspecialized for folk physics comes from studies of people

with autism spectrum disorder. These individuals are parti-cularly bad at solving problems that require 'folk psy-chology', but they do very well with problems related to howphysical objects (e.g. the parts of machine) behave, i.e. 'folkphysics' (Baron Cohen 2000). Another piece of evidence fora 'folk physics' system comes from discrepancies betweenpeople's physical intuitions and the way the world actuallyworks. People say, for example, that a ball shot out of acurved tube resting on a flat surface will continue to follow acurved path outside the tube when in fact it will follow astraight path (McCloskey et al. 1980). The fact that people'sphysical intuitions are slightly, but systematically, out ofstep with reality suggests that the mind brings a fair amountof implicit theory to the perception of physical objects.

Thus, it is at least plausible that we possess distinguish-able cognitive systems for making sense of the behaviour ofobjects in the world. These systems seem to have two fun-damentally different 'ontologies'. The folk physics systemdeals with chunks of matter that move around without pur-poses of their own according to the laws of intuitive phys-ics, whereas the folk psychology system deals with unseenfeatures of minds: beliefs, desires, intentions, etc. Butwhat, to our minds, is a mind? We suggest that a crucialfeature, if not the defining feature, of a mind (intuitivelyunderstood) is that it is an uncaused causer (Scholl &Tremoulet 2000). Minds animate material bodies, allow-ing them to move without any apparent physical cause andin pursuit of goals. Moreover, we reserve certain social atti-tudes for things that have minds. For example, we do notresent the rain for ruining our picnic, but we would resent aperson who hosed our picnic (Strawson 1962), and weresent picnic-hosers considerably more when we perceivethat their actions are intentional. Thus, it seems that folkpsychology is the gateway to moral evaluation. To seesomething as morally blameworthy or praiseworthy (even ifit is just a moving square), one has to first see it as 'some-one', that is, as having a mind.With all of this in the background, one can see how theproblem of attributive free will arises. To see something asa responsible moral agent, one must first see it as having amind. But, intuitively, a mind is, among other things, anuncaused causer. Consequently, when something is seen asa mere physical entity operating in accordance with deter-ministic physical laws, it ceases to be seen, intuitively, as amind. Consequently, it is seen as an object unworthy ofmoral praise or blame. (Note that we are not claiming thatpeople automatically attribute moral agency to anythingthat appears to be an uncaused causer. Rather, our claim isthat seeing something as an uncaused causer is a necessarybut not sufficientcondition for seeing something as a moralagent.)After thousands of years of our thinking of one anotheras uncaused causers, science comes along and tells usthat there is no such thing-that all causes, with thepossible exception of the Big Bang, are caused causes(determinism). This creates a problem. When we look atpeople as physical systems, we cannot see them as any moreblameworthy or praiseworthy than bricks. But when weperceive people using our intuitive, folk psychology we can-not avoid attributing moral blame and praise.

So, philosophers who would honour both our scientificknowledge and our social instincts try to reconcile thesetwo competing outlooks, but the result is never completely



10/12

Neurosciencehangesnothingand everything J. Greene and J. Cohen 1783

satisfying, and the debate wears on. Philosophers who can-not let go of the idea of uncaused causes defend libertarian-ism, and thus opt for scientifically dubious, 'panickymetaphysics'. Hard determinists, by contrast, embrace theconclusions of modern science, and concede what otherswill not: that many of our dearly held social practices arebased on an illusion. The remaining majority, the compati-bilists, try to talk themselves into a compromise. But thecompromise is fragile. When the physical details of humanaction are made vivid, folk psychology loses its grip, just asfolk physics loses its grip when the morally significantdetails are emphasized. The problem of free will and deter-minism will never find an intuitively satisfying solutionbecause it arises out of a conflict between two distinct cog-nitive subsystems that speak different cognitive 'languages'and that may ultimately be incapable of negotiation.

8. FREEWILL,RESPONSIBILITYANDCONSEQUENTIALISMEven if there is no intuitively satisfying solution to the prob-lem of free will, it does not follow that there is no correctview of the matter. Ours is as follows: when it comes to theissue of free will itself, hard determinism is mostly correct.Free will, as we ordinarily understand it, is an illusion.However, it does not follow from the fact that free will is anillusion that there is no legitimate place for responsibility.Recall from ?2 that there are two general justifications forholding people legally responsible for their actions. Theretributive justification, by which the goal of punishment isto give people what they really deserve, does depend on thisdubious notion of free will. However, the consequentialistapproach does not require a belief in free will at all. As con-sequentialists, we can hold people responsible for crimessimply because doing so has, on balance, beneficial effectsthrough deterrence, containment, etc. It is sometimes saidthat if we do not believe in free will then we cannot legiti-mately punish anyone and that society must dissolve intoanarchy. In a less hysterical vein, Daniel Wegner arguesthat free will, while illusory, is a necessary fiction for themaintenance of our social structure (Wegner 2002, ch. 9).We disagree. There are perfectly good, forward-lookingjustifications for punishing criminals that do not depend onmetaphysical fictions. (Wegner's observations may applybest to the personal sphere: see below.)

The vindication of responsibility in the absence of freewill means that there is more than a grain of truth in com-patibilism. The consequentialist approach to responsibilitygenerates a derivative notion of free will that we canembrace (Smart 1961). In the name of producing betterconsequences, we will want to make several distinctionsamong various actions and agents. To begin, we will wantto distinguish the various classes of people who cannot bedeterred by the law from those who can. That is, we willrecognize many of the 'diminished capacity' excuses thatthe law currently recognizes such as infancy and insanity.We will also recognize familiar justifications such thoseassociated with crimes committed under duress (e.g. threatof death). If we like, then, we can say that the actions ofrational people operating free from duress, etc. are freeactions, and that such people are exercising their free will.At this point, compatibilists such as Daniel Dennett mayclaim victory: 'what more could one want from free will?'.

In a word: retributivism. We have argued that common-sense retributivism really does depend on a notion of freewill that is scientifically suspect. Intuitively, we want topunish those people who truly deserve it, but whenever thecauses of someone's bad behaviour are made sufficientlyvivid, we no longer see that person as truly deserving ofpunishment. This insight is expressed by the old Frenchproverb: 'to know all is to forgive all'. It is also expressed inthe teachings of religious figures, such as Jesus and Bud-dha, who preach a message of universal compassion. Neu-roscience can make this message more compelling byvividly illustrating the mechanical nature of human action.Our penal system is highly counter-productive from aconsequentialist perspective, especially in the USA, and yetit remains in place because retributivist principles have apowerful moral and political appeal (Lacey 1988; Tonry2004). It is possible, however, that neuroscience willchange these moral intuitions by undermining the intuitive,libertarian conceptions of free will on which retributivismdepends.As advocates of consequentialist legal reform, it behovesus to briefly respond to the three standard criticisms leviedagainst consequentialist theories of punishment. First, it isclaimed that consequentialism would justify extreme over-punishing. As noted above, it is possible in principle thatthe goal of deterrence would justify punishing parking vio-lations with the death penalty or framing innocent peopleto make examples of them. Here, the standard response isadequate. The idea that such practices could, in the realworld, make society happier on balance is absurd. Second,it is claimed that consequentialism justifies extreme under-punishment. In response to some versions of this objection,our response is the same as above. Deceptive practices suchas a policy of faking punishment cannot survive in a freesociety, and a free society is required for the pursuit of mostconsequentialist ends. In other cases consequentialism mayadvocate more lenient punishments for people who, intuit-ively, deserve worse. Here, we maintain that a deeperunderstanding of human action and human nature will leadpeople-more of them, at any rate-to abandon these retri-butivist intuitions. Our response is much the same to thethird and most general criticism of consequentialist punish-ment, which is that even when consequentialism gets thepunishment policy right, it does so for the wrong reasons.These supposedly right reasons are reasons that we reject,however intuitive and natural they may feel. They are, wemaintain, grounded in a metaphysical view of humanaction that is scientifically dubious and therefore an unfitbasis for public policy in a pluralistic society.

Finally, as defenders of hard determinism and a con-sequentialist approach to responsibility, we should brieflyaddress some standard concerns about the rejection of freewill and conceptions of responsibility that depend on it.First, does not the fact that you can raise your hand 'at will'prove that free will is real? Not in the sense that matters. AsDaniel Wegner (2002) has argued, our first-person sense ofourselves as having free will may be a systematic illusion.And from a third-person perspective, we simply do notassume that anyone who exhibits voluntary control overhis body is free in the relevant sense, as in the case ofMr Puppet.A more serious challenge is the claim that our commit-ments to free will and retributivism are simply inescapable



11/12

1784 J. Greene and J. Cohen Neurosciencehangesnothingand everything

for all practical purposes. Regarding free will, one mightwonder whether one can so much as make a decision with-out implicitly assuming that one is free to choose amongone's apparent options. Regarding responsibility and pun-ishment, one might wonder if it is humanly possible to denyour retributive impulses (Strawson 1962; Pettit 2002).This challenge is bolstered by recent work in the beha-vioural sciences suggesting that an intuitive sense of fair-ness runs deep in our primate lineage (Brosnan & De Waal2003) and that an adaptive tendency towards retributivepunishment may have been a crucial development in thebiological and cultural evolution of human sociality (Fehr& Gachter 2002; Boyd et al. 2003; Bowles & Gintis 2004).Recent neuroscientific findings have added further supportto this view, suggesting that the impulse to exact punish-ment may be driven by phylogentically old mechanisms inthe brain (Sanfey et al. 2003). These mechanisms may bean efficient and perhaps essential, device for maintainingsocial stability. If retributivism runs that deep and is thatuseful, one might wonder whether we have any serioushope of, or reason for, getting rid of it. Have we any realchoice but to see one another as free agents who deserve tobe rewarded and punished for our past behaviours?We offer the following analogy: modem physics tells usthat space is curved. Nevertheless, it may be impossible forus to see the world as anything other than flatly Euclideanin our day-to-day lives. And there are, no doubt, deep evol-utionary explanations for our Euclidean tendencies. Doesit then follow that we are forever bound by our innateEuclidean psychology? The answer depends on the domainof life in question. In navigating the aisles of the grocerystore, an intuitive, Euclidean representation of space is notonly adequate, but probably inevitable. However, when weare, for example, planning the launch of a spacecraft, wecan and should make use of relativistic physical principlesthat are less intuitive but more accurate. In other words, aEuclidean perspective is not necessary for all practical pur-poses, and the same may be true for our implicit commit-ment to free will and retributivism. For most day-to-daypurposes it may be pointless or impossible to view ourselvesor others in this detached sort of way. But-and this is thecrucial point-it may not be pointless or impossible toadopt this perspective when one is deciding what the crimi-nal law should be or whether a given defendant should beput to death for his crimes. These may be special situations,analogous to those routinely encountered by 'rocket scien-tists', in which the counter-intuitive truth that we legiti-mately ignore most of the time can and should beacknowledged.

Finally, there is the worry that to reject free will is to ren-der all of life pointless: why would you bother with any-thing if it has all long since been determined? The answer isthat you will bother because you are a human, and that iswhat humans do. Even if you decide, as part of a little intel-lectual exercise, that you are going to sit around and donothing because you have concluded that you have no freewill, you are eventually going to get up and make yourself asandwich. And if you do not, you have got bigger problemsthan philosophy can fix.

9. CONCLUSIONNeuroscience is unlikely to tell us anything that will chal-lenge the law's stated assumptions. However, we maintainthat advances in neuroscience are likely to change theway people think about human action and criminalresponsibility by vividly illustrating lessons that somepeople appreciated long ago. Free will as we ordinarilyunderstand it is an illusion generated by our cognitivearchitecture. Retributivist notions of criminal responsi-bility ultimately depend on this illusion, and, if we arelucky, they will give way to consequentialist ones, thusradically transforming our approach to criminal justice.At this time, the law deals firmly but mercifully withindividuals whose behaviour is obviously the product offorces that are ultimately beyond their control. Some day,the law may treat all convicted criminals this way. That is,humanely.The authors thank Stephen Morse, Andrea Heberlein, AaronSchurger,JenniferKessler and Simon Keller for their input.

ENDNOTESOf course,scientificrespectabilitys not everyone's irstpriority.However,the law in most Western states is a public institutiondesigned o function n asociety hatrespectsa widerangeofreligiousand otherwisemetaphysical eliefs.The law cannotfunction n thisway f itpresupposesontroversialnd unverifiablemetaphysicalactsaboutthe natureof humanaction,or anythingelse. Thus, the lawmust restricttselfto the classof intersubjectivelyerifiableacts, .e.the factsrecognized yscience,broadly onstrued.Thispracticeneednot derive roma conviction hatthe scientificallyerifiableactsarenecessarilyheonlyfacts,butmerely romarecognitionhatverifiableorscientificactsaretheonlyfactsuponwhichpublic nstitutionsn apluralistic ocietycaneffectively ely.2 Thereare someformsof dualismaccordingo whichthe mindandbody, althoughdistinct,do not interact,making t impossible orthemindto haveanyobservableffectson thebrainoranything lseinthephysicalworld.These versionsof dualismdo not concernus here.Forthe purposesof this paper,we arehappyto allow the metaphysicalclaimthat souls or aspectsof mindsmayexistindependently f thephysicalbody.Our concern s specificallywith interactionistersionsof dualismaccordingto which non-physicalmental entitieshaveobservable hysical ffects.We believe hat sciencehasrendered uchviewsuntenableand that the law, insofaras it is a public nstitutiondesigned o serveapluralisticociety,must notrelyon beliefs hatarescientificallyuspect seeprevious ndnote).3 It is conceivable hat rationality ould somedaybe redefined nneurocognitiveather hanbehaviouralerms,muchas waterhasbeenredefinedn termsof its chemicalcomposition.Were hat to happen,neuroscientific evidence could then be construed as more direct than

behavioural evidence. But Steinberg and Scott's argument appears tomake use of a conventional, behavioural definition of rationality andnot a neurocognitive redefinition.4 This is not to saythatwe could not describeMr Puppet n suchawaythat our intuitionsabouthim would change.Ourpoint is onlythat,when hedetailsare aidbare, t isveryhard o seehim asmorallyresponsible.5 Compatibilist hilosophers uch as DanielDennett (2003) mightobject that the story of Mr Puppet is nothing but a misleading'intuitionpump'. Indeed,this is whatDennett saysabouta similarcase of AlfredMele's(1995). We believe hat our case is importantlydifferent romMele's.DennettandMeleimagine wo womenwhoarepsychologicallydentical:Ann is a typical,good person,whereasBethhas been brainwashedo be just like Ann. Dennett argues,againstMele,that fyoutakeseriouslyhe claim hat hesetwoarepsychologi-cally identical and properly imagine that Beth is as rational, open-minded,etc. asAnn,youwill come to seethat he twoareequallyree.We agreewithDennettthat Ann and Beth arecomparable ndthat

Phil.Trans.R. Soc.Lond.B (2004)


12/12

Neurosciencehangesnothingandeverything J. Greene and J. Cohen 1785Mele'sintuition alterswhenthe detailsarefleshedout. Butdoes thesameholdfortheintuitionprovoked yMrPuppet's tory?tseems ous that the moreone knowsabout Mr Puppetand his life the lessinclinedone is to see him as trulyresponsibleorhis actionsand ourpunishinghim as a worthyend in itself.We can agreewithDennettthatthere s a sense in whichMrPuppet s free.Ourpointis merelythatthere s alegitimate ense nwhichhe, likeallofus, isnotfreeandthat hissensemattersor he aw.6 We donot wish o imply hatneurosciencewill nevitably utus in apositionto predictanygivenactionbasedon a neurological xamin-ation.Rather,oursuggestions simply hatneurosciencewilleventu-allyadvance o the point at whichthe mechanisticnatureof humandecision-makings sufficientlyapparent o undermine he force ofdualist/libertarianntuitions.

REFERENCESAdolphs, R. 1999 Social cognition and the human brain.TrendsCogn.Sci. 3, 469-479.Baron Cohen, S. 2000 Autism: deficits in folk psychology existalongside superiority in folk physics. In Understanding therminds: perspectivesrom autism and developmentalcognitiveneuroscience ed. S. Baron Cohen, H. Tager Flusberg &D. Cohen), pp. 78-82. New York:OxfordUniversity Press.Bentham, J. 1982 An introduction o theprinciplesof moralsandlegislation.London: Methuen.Bowles, S. & Gintis, H. 2004 The evolution of strong recip-rocity: cooperation in heterogeneous populations. Theor.Popul.Biol. 65, 17-28.Boyd, R., Gintis, H., Bowles, S. & Richerson, P. J. 2003 Theevolution of altruistic punishment. Proc. Natl Acad. Sci.USA 100, 3531-3535.Brosnan, S. F. &De Waal, F. B. 2003 Monkeys reject unequalpay. Nature425, 297-299.Dennett, D. C. 1984 Elbowroom:thevarietiesoffree will worthwanting.Cambridge, MA: MIT Press.Dennett, D. C. 1987 Theintentionalstance. Cambridge, MA:MIT Press.Dennett, D. C. 1991 Consciousness xplained. Boston, MA:Little Brown and Co.Dennett, D. C. 2003 Freedom volves.New York:Viking.Fehr, E. & Gachter, S. 2002 Altruisticpunishment in humans.Nature415, 137-140.Fodor, J. A. 1987 Psychosemantics:heproblemof meaning n thephilosophyofmind. Cambridge, MA: MIT Press.Frankfurt, H. 1966 Alternatepossibilities and moral responsi-bility.J. Philosophy66, 829-839.Goldstein, A. M., Morse, S. J. & Shapiro, D. L. 2003 Evalu-ation of criminalresponsibility. In Forensic sychology. ol. 11(ed. A. M. Goldstein), pp. 381-406. New York:Wiley.Goldstein, A. S. 1967 The insanity defense.New Haven, CT:Yale University Press.Hart, H. L. A. 1968 Punishment and responsibility.OxfordUniveristy Press.Heberlein, A. S. & Adolphs, R. 2004 Impaired spontaneousanthropomorphizing despite intact perception and socialknowledge. Proc.NatlAcad. Sci. USA 101, 7487-7491.Heider, F. & Simmel, M. 1944 An experimental study ofapparentbehavior. Am. J. Psychol. 57, 243-259.

Hughs, R. I. G. 1992 The structure nd interpretation fquantummechanics.Cambridge, MA: HavardUniversity Press.Kahneman, D. & Tversky, A. (eds) 2000 Choices,values, andframes. Cambridge University Press.Kant, I. 2002 Thephilosophyof law: an expositionof the unda-mentalprinciplesofjurisprudence s the scienceof right.Union,NJ: Lawbook Exchange.Lacey, N. 1988 State punishment:politicalprinciplesand com-munityvalues. London and New York: Routledge & KeganPaul.McCloskey, M., Caramazza, A. & Green, B. 1980 Curvi-linear motion in the absence of external forces: naive

beliefs about the motion of objects. Science 210, 1139-1141.Mele, A. 1995 Autonomousagents: rom self-controlo autonomy.OxfordUniversity Press.Morse, S. J. 2004 New neuroscience, old problems. In Neu-roscience nd thelaw: brain,mind, and the scalesof ustice (ed.B. Garland), pp. 157-198. New York:Dana Press.Pettit, P. 2002 Thecapacityto have done otherwise.Rules, rea-sons,and norms: elected ssays.OxfordUniversity Press.Pincus, J. H. 2001 Base instincts:what makeskillerskill?NewYork: Norton.Pinker, S. 1997 How the mind works.New York:Norton.Premack, D. &Woodruff, G. 1978 Does the chimpanzee havea theory of mind? Behav. BrainSci. 4, 515-526.Rosen, G. 2002 The case for incompatibilism. PhilosophyPhenomenol.Res. 64, 699-706.Sanfey, A. G., Rilling, J. K., Aronson, J. A., Nystrom, L. E. &Cohen, J. D. 2003 The neural basis of economic decision-making in the ultimatum game. Science300, 1755-1758.Saxe, R., Carey, S. & Kanwisher, N. 2004 Understandingother minds: liking developmental psychology and func-tional neuroimaging. A. Rev. Psychol.55, 87-124.Scholl, B. J. &Tremoulet, P. D. 2000 Perceptual causality and

animacy. TrendsCogn.Sci. 4, 299-309.Shear, J. (ed.) 1999 Explaining consciousness: the hardproblem.Cambridge, MA: MIT Press.Smart, J. J. C. 1961 Free will, praise, and blame. Mind 70,291-306.Steinberg, L. & Scott, E. S. 2003 Less guilty by reason of ado-lescence: developmental immaturity, diminished responsi-bility, and the juvenile death penalty. Am. Psychol. 58,1009-1018.Strawson, P. F. 1962 Freedom and resentment. Proc. Br.Acad. xlviii, 1-25.Tonry, M. 2004 Thinkingabout crime:senseand sensibility nAmerican penal culture. New York: Oxford UniversityPress.Van Inwagen, P. 1982 The incompatibility of free will anddeterminism. In Free will (ed. G. Watson), pp. 46-58. NewYork:Oxford University Press.Watson, G. (ed.) 1982 Freewill. New York:OxfordUniversityPress.Wegner, D. M. 2002 The illusionof consciouswill. Cambridge,MA: MIT Press.Wright, R. 1994 Themoralanimal: evolutionarypsychologyandeveryday fe. New York:Pantheon.

Phil.Trans.R.Soc.Lond.B (2004)

Greene and Cohen

Documents

Transcript of Greene and Cohen