Joshua Greene and Jonathan Cohen
“For the Law, Neuroscience Changes Nothing and Everything”
Mens Rea, Retributivism, and the Law
Cognitive Neuroscience and Criminal Responsibility
“Existing legal principles make virtually no assumptions about the neural basis of criminal behavior, and as a result they can comfortably assimilate new neuroscience without much in the way of conceptual upheaval.”
“We maintain, however, that our operative legal principles exist because they more or less accurately capture our intuitive sense of justice.”
G & C claim that neuroscience will eventually reveal that “there is something fishy about our ordinary conceptions of human action and responsibility.”
“Current legal doctrine, although officially compatibilist, is ultimately grounded in intuitions that are incompatibilist, and more specifically, libertarian… [moreover] The law’s intuitive support is ultimately grounded in a metaphysically overambitious, libertarian notion of free will that is threatened by determinism and, more pointedly, by forthcoming cognitive neuroscience.”
The Erosion of Libertarian Free Will and Retributivistic Desert
“We argue further that the philosophical problem of free will arises out of a conflict between two cognitive subsystems that speak different languages: the ‘folk psychology’ system and the ‘folk physics’ system.”
Utilitarian vs. Retributivism
Three Problems for Utilitarianism: (a) overly harsh penalties, (b) punishing the innocent, (c) the threat of punishment vs. punishment
Retributivism does a better job of capturing our intuitions that Utilitarianism
Three Views of FW: (a) hard determinism, (b) libertarianism, and (c) compatibilism
Retributivism only works in principle with (b) and (c)—and since (b) seems “scientifically suspect,” it only works in practice in conjunction with (c).
The Current Notion of Legal Personhood and Responsibility
Minimal Practical Rationality
“For the law, as written, neuroscience changes nothing…but, we maintain, the law nevertheless stands to shakier ground that the foregoing would suggest. The legitimacy of the law itself depends on its adequately reflecting the moral intuitions and commitments of society. If neuroscience can change those intuitions, then neuroscience can change the law.”
“The seeds of discontent are already sown in common-sense legal thought.”
What really matters for responsibility?
Authorship and Culpability
Dualism and Attributions of Responsibility
The Illusion of the Captain of the Ship
“What the law cares about and what people care about do not necessarily coincide.”
The Boys from Brazil Problem and Mr. Puppet
Mr. Puppet vs. the Garden Variety Criminal
“Intuitive free will is libertarian, not compatibilist.”
From Black Box to Transparent Bottle-neck
“There are many causes that impinge on behavior, but all of them, must exert their influence through the brain.”
“The law will continue to punish misdeeds, as it must for practical reasons, but the idea of distinguishing the truly, deeply guilty from those who are merely victims of neuronal circumstances will, we submit, [eventually] seem pointless.”
A Cognitive Account of Free Will Attribution
Folk Psychology vs. Folk Physics
Dividing the World in Two (Heider and Simmel revisited)
“To see something as a responsible moral agent, one must first see it as having a mind. But, intuitively, a mind is, among other things, an uncaused causer. Consequently, when something is seen as a mere physical entity operating in accordance with determinist physical laws, it ceases to be seen, intuitively, as a mind.”
The Problem of Free Will and Determinism has no intuitively satisfying solution.
From Free Will to Compatibilist Responsibility
“There are perfectly good, forward-looking justifications for punishing criminals that do not depend on metaphysical fictions.”
The Death of Retributivism?
The Centrality of Retributivism Argument
Will the death of libertarian free will render life meaningless?
“Why would you bother with anything if it has all long since been determined? The answer is that you will bother because you are human, and that is what humans do. Even if you decide…that you are going to sit around and do nothing because you have concluded that you have no free will, you are eventually going to get up and make yourself a sandwich. And if you do not, you have got bigger problems than philosophy can fix.”