The law has taken a long-standing interest in the mind. Cognitive neuroscience, the study of the mind through the brain, has gained prominence in part as a result of the advent of functional neuroimaging as a widely used tool for psychological research. Existing legal principles make virtually no assumptions about the neural bases of criminal behavior, and as a result they can comfortably assimilate new neuroscience without much in the way of conceptual upheaval: new details, new sources of evidence, but (...) nothing for which the law is fundamentally unprepared. Neuroscience challenges ultimately reshape our intuitive sense of justice. It draws a familiar distinction between the consequentialist justification for state punishment, according to which punishment is merely an instrument for promoting future social welfare, and the retributivist justification for punishment, according to which the principal aim of punishment is to give people what they deserve based on their past actions. (shrink)

In some cases people judge it morally acceptable to sacrifice one person’s life in order to save several other lives, while in other similar cases they make the opposite judgment. Researchers have identified two general factors that may explain this phenomenon at the stimulus level: (1) the agent’s intention (i.e. whether the harmful event is intended as a means or merely foreseen as a side-effect) and (2) whether the agent harms the victim in a manner that is relatively “direct” or (...) “personal”. Here we integrate these two classes of findings. Two experiments examine a novel personalness/directness factor that we call personal force, present when the force that directly impacts the victim is generated by the agent’s muscles (e.g., in pushing). Experiments 1a and b demonstrate the influence of personal force on moral judgment, distinguishing it from physical contact and spatial proximity. Experiments 2a and b demonstrate an interaction between personal force and intention, whereby the effect of personal force depends entirely on intention. These studies also introduce a method for controlling for people’s real-world expectations in decisions involving potentially unrealistic hypothetical dilemmas. (shrink)

In a widely read essay, “For the Law, Neuroscience Changes Nothing and Everything,” Joshua Greene and Jonathan Cohen argue that the advance of neuroscience will result in the widespread rejection of free will, and with it – of retributivism. They go on to propose that consequentialist reforms are in order, and they predict such reforms will take place. We agree that retributivism should be rejected, and we too are optimistic that rejected it will be. But we don’t (...) think that such a development will have much to do with neuroscience – it won’t, because neuroscience is unlikely to show that we have no free will. We have two main aims in this paper. The first is to rebut various aspects of the case against free will. The second is to examine the case for consequentialist reforms. We take Greene and Cohen’s essay as a hobbyhorse, but our criticisms are applicable to neurodeterministic anti-free-willism in general. We first suggest that Greene and Cohen take proponents of free will to be committed to an untenable homuncular account of agency. But proponents of free will can dispense with such a commitment. In fact, we argue, it is Greene and Cohen who work with an overly simple account of free will. We sketch a more nuanced conception. We then turn to the proposal for consequentialist reforms. We argue that retributivism will fall out of favor not as a consequence of neuroscience-driven rejection of free will, but rather, as a result of a familiar feature of moral progress – the expanding circle of concern. In short, retributivism can and must die, but neuroscience will not kill it – humanity will. (shrink)

This article clarifies what a neuroscience challenge to criminal justice must look like by sketching the basic structure of the argument, gradually filling out the details and illustrating the conditions that must be met for the challenge to work. In the process of doing so it explores influential work by Joshua Greene and Jonathan Cohen, and Stephen Morse respectively, arguing that the former should not be understood to present a version of the challenge, and that the latter's (...) argument against the challenge is unpersuasive. This analysis allows the article to flesh out the challenge, and demonstrate why it is currently non-completeable. However, the paper argues that contrary to what is often assumed the burden of proof falls on the defenders of criminal justice, and that they will find meeting it a monumental task. (shrink)