“To a neuroscientist, you are your brain; nothing causes your behavior other than the operations of your brain,” Greene says. “If that’s right, it radically changes the way we think about the law. The official line in the law is all that matters is whether you’re rational, but you can have someone who is totally rational but whose strings are being pulled by something beyond his control.” In other words, even someone who has the illusion of making a free and rational choice between soup and salad may be deluding himself, since the choice of salad over soup is ultimately predestined by forces hard-wired in his brain. Greene insists that this insight means that the criminal-justice system should abandon the idea of retribution —the idea that bad people should be punished because they have freely chosen to act immorally —which has been the focus of American criminal law since the 1970s, when rehabilitation went out of fashion. Instead, Greene says, the law should focus on deterring future harms. In some cases, he supposes, this might mean lighter punishments. “If it’s really true that we don’t get any prevention bang from our punishment buck when we punish that person, then it’s not worth punishing that person,” he says. (On the other hand, Carter Snead, the Notre Dame scholar, maintains that capital defendants who are not considered fully blameworthy under current rules could be executed more readily under a system that focused on preventing future harms.)
Others agree with Greene and Cohen that the legal system should be radically refocused on deterrence rather than on retribution. Since the celebrated M’Naughten case in 1843, involving a paranoid British assassin, English and American courts have recognized an insanity defense only for those who are unable to appreciate the difference between right and wrong. (This is consistent with the idea that only rational people can be held criminally responsible for their actions.) According to some neuroscientists, that rule makes no sense in light of recent brain-imaging studies. “You can have a horrendously damaged brain where someone knows the difference between right and wrong but nonetheless can’t control their behavior,” says Robert Sapolsky, a neurobiologist at Stanford. “At that point, you’re dealing with a broken machine, and concepts like punishment and evil and sin become utterly irrelevant. Does that mean the person should be dumped back on the street? Absolutely not. You have a car with the brakes not working, and it shouldn’t be allowed to be near anyone it can hurt.”
Even as these debates continue, some skeptics contend that both the hopes and fears attached to neurolaw are overblown. “There’s nothing new about the neuroscience ideas of responsibility; it’s just another material, causal explanation of human behavior,” says Stephen J. Morse, professor of law and psychiatry at the University of Pennsylvania. “How is this different than the Chicago school of sociology,” which tried to explain human behavior in terms of environment and social structures? “How is it different from genetic explanations or psychological explanations? The only thing different about neuroscience is that we have prettier pictures and it appears more scientific.”
Morse insists that “brains do not commit crimes; people commit crimes” — a conclusion he suggests has been ignored by advocates who, “infected and inflamed by stunning advances in our understanding of the brain . . . all too often make moral and legal claims that the new neuroscience . . . cannot sustain.” He calls this “brain overclaim syndrome” and cites as an example the neuroscience briefs filed in the Supreme Court case Roper v. Simmons to question the juvenile death penalty. “What did the neuroscience add?” he asks. If adolescent brains caused all adolescent behavior, “we would expect the rates of homicide to be the same for 16- and 17-year-olds everywhere in the world — their brains are alike — but in fact, the homicide rates of Danish and Finnish youths are very different than American youths.” Morse agrees that our brains bring about our behavior —— “I’m a thoroughgoing materialist, who believes that all mental and behavioral activity is the causal product of physical events in the brain” —but he disagrees that the law should excuse certain kinds of criminal conduct as a result. “It’s a total non sequitur,” he says. “So what if there’s biological causation? Causation can’t be an excuse for someone who believes that responsibility is possible. Since all behavior is caused, this would mean all behavior has to be excused.” Morse cites the case of Charles Whitman, a man who, in 1966, killed his wife and his mother, then climbed up a tower at the University of Texas and shot and killed 13 more people before being shot by police officers. Whitman was discovered after an autopsy to have a tumor that was putting pressure on his amygdala. “Even if his amygdala made him more angry and volatile, since when are anger and volatility excusing conditions?” Morse asks. “Some people are angry because they had bad mommies and daddies and others because their amygdalas are mucked up. The question is: When should anger be an excusing condition?”
Still, Morse concedes that there are circumstances under which new discoveries from neuroscience could challenge the legal system at its core. “Suppose neuroscience could reveal that reason actually plays no role in determining human behavior,” he suggests tantalizingly. “Suppose I could show you that your intentions and your reasons for your actions are post hoc rationalizations that somehow your brain generates to explain to you what your brain has already done” without your conscious participation. If neuroscience could reveal us to be automatons in this respect, Morse is prepared to agree with Greene and Cohen that criminal law would have to abandon its current ideas about responsibility and seek other ways of protecting society.
Fortunately, there is no shortage of historical precedents to guide and inspire us.
Although ambiguous about where this all leads, Professor Morse is correct that there is nothing particularly original here. Each new wave of determinist thinking tends to arrive with a splash and claim the idea that our behaviours are influenced by genes, brains, nature, nurture, the stars, the climate or whatever is brand new and a counterpoint to a supposed universal historical belief that humans are independent actors in full control of their lives and equally capable of choosing from an infinite number of possible actions. In fact, the opposite is the case. Almost nobody believes that or ever did. Free will, moral agency and individual responsibility are gifts of monotheism, which holds we have the capacity to rise above our largely determined natures, but not without struggle and not unaided. That belief is the historical exception to the rule and the grounding of the most prosperous, culturally rich and successful civilization in history.
Determinism is the default belief in human history. It defines paganism, which explains why aboriginal peoples and so many African communities cannot break out of endless cycles of poverty and pathology. It defined much of Asia until Asians consciously and expressly rejected their traditions to adopt Western ways. Since about fifty years after the Enlightenment, it has largely defined secularism. Not unlike medieval astrologers, Marx, Freud, Darwin and a host of minor others all argued man is in the grip of forces of which he is unaware and which absolved him of responsibility for his actions and fate. Their popularity was instant and widespread, demonstrating what every lawyer knows–that people will go to the most extreme lengths to find exculpatory explanations for their actions, no matter how heinous or injurious. It is the man who genuinely admits responsibility that is the rare exception.
Neuroscience appears to be the current exciting cutting edge of determinism, which unfortunately means we will once again probably spend decades watching judges grapple with the implications of considering defendants and witnesses as mindless automatons in the controlling grip of independent cerebral forces only judges and neuroscientists can escape. One can only hope this latest attack on free will and ultimate individual responsibility, the plinth of Western civilization, does limited damage before the inevitable reaction sets in. At an intellectual level, the reaction will come when our learned scientific sages finally admit that, while their theories work great on chimps and slugs, there are too many aspects of human nature and human behaviour that simply cannot be explained by them. At a popular level, it will occur when a collective revulsion wells up from within at the gut realization that the idea we cannot control our destinies and are not responsible for our choices means there is no particular reason to move forward in life or even go on living.
Even soccer hooligans know that.