The Journal of Things We Like (Lots)
Select Page
William Hirstein, Katrina Sifferd & Tyler K. Fagan. Responsible Brains: Neuroscience, Law, and Human Culpability (2018).

The interface between law and neuroscience has been a continuing source of interest for lawyers and philosophers. Many scholars have hailed developments in neuroscience as singularly transformative for our understanding of human agency. Further—it is argued—once we understand human agency from the neuronal point of view, we will be forced to alter the ways in which our practices of responsibility—especially law—regulate human conduct.

In the view of some scholars, claims for the transformative impact of neuroscientific developments on law are overblown. Taken to an extreme, those who trumpet the transformative effects of neuroscience on law have sometimes been found to suffer from the malady Stephen Morse labels “Brain Overclaim Syndrome.” Labelling the syndrome a “cognitive pathology,” Morse argues that claims made by those in the grip of the pathology make claims that cannot be conceptually or empirically sustained.1

The authors of this provocative and interesting book make strong claims for the importance of neuroscience for our practices of responsibility. Their strongest conceptual claim is one they make often. In fact, the claim is the central thesis of their book. When it comes to responsibility assessment, the authors argue that the brain itself—specifically its executive functions—are “the seat of human responsibility.” (P. viii.)

The first of the book’s eleven chapters begins with a description of three recent high-profile criminal cases where the state of the defendant’s brain was at issue. The most well-known of the three is that of Anders Brevik. In July 2011, then 32-year-old Brevik killed 77 people—including many youths on the island of Utøya—using both explosives and automatic weapons. Alternatively found to be insane and then sane, Brevik’s case raises the question of the relevance of mental illness to responsibility and, thus, punishment. Mental illness has always been treated as a mitigating factor in both culpability and punishment assessments. The authors want to go beyond conventional approaches to these issues with the argument that “specific facts about the brains of the agents discussed in these cases…strongly inform assessment of their culpability.” (P. 8.)

It is important to be clear about just what the authors are claiming when it comes to the relationship between facts about the brain and normative evaluations of conduct (e.g., the criminal law). No one disputes the fact that neuroscientific assessments can and should impact responsibility assessments. The usual form such assessments takes are pleas for mitigation at the sentencing stage of criminal proceedings. While the authors take no issue with these conventional approaches, their central claim is much stronger than one commonly encounters in the literature. They write: “Neuroscience is both relevant to responsibility and consistent with our ordinary ‘folk’ conceptions of it. Evidence from cognitive science and neuroscience can illuminate and inform the nature of responsibility and agency in specific, testable ways.” (P. 12.)

The authors develop their position with an account of “executive functions” (responsibility for action presupposes that the agent in question is possessed of a MWS (minimal working set of executive functions)). After a review of the current neuroscience of executive function (Chapter 2), the authors integrate executive function with reasons responsiveness (Chapter 3) and legal theory as well as criminal law (Chapter 4). Chapters 5-7 are an extended engagement with the work of Neil Levy, who developed a theory of responsibility out of a theory of consciousness. Chapter 8 applies the authors’ theory to the special problems of juvenile responsibility. Chapter 9 considers insanity and Chapter 10 takes up punishment theory. The book ends with a chapter on future work and what issues remain open for further development.

So what are executive functions and why are they so important? Executive functions are usually thought to be located in the prefrontal cortex of the brain. Recent work in neuroscience suggests that “all executive functions (or at least a core set of them) are accomplished by a single, unified brain network, the frontoparietal cognitive-control network (working together with adjunctive areas, some of which are unique to the particular executive process involved).” (P. 21.) They regulate a variety of human behaviors, most importantly perception, memory, and emotion.

The language of moral assessment—both everyday terms and specialized vocabularies like the criminal law—are disparaged by reductionist hardliners (e.g., Patricia Churchland) as mere “folk psychology.” Reductionist physicalists want to replace folk psychological terms like those employed in the criminal law with the language of science, specifically neuroscience. The motivation for this approach is the belief that folk psychological terms refer to nothing in the world. For the naturalist/reductionist/physicalist, because all behavior is the result of causal forces alone, only the language of science is appropriate in ascribing responsibility for action. Folk psychological terms are dismissed as vacuous and non-referential. They have no traction in the real world.

The authors describe themselves as naturalists and physicalists, but they wear their philosophical positions lightly. None of the arguments in their book turns on adoption of a particular metaphysics of action or responsibility. Nowhere is this more apparent than in their treatment of the relationship between the folk psychological vocabulary of the criminal law and neuroscientific facts about executive functions. Before further discussing this important aspect of their argument, let me deal with a preliminary issue.

Many philosophers claim that the criminal law presupposes free will. The argument is straightforward. The law punishes agents for wrongful acts committed with a guilty mind (mens rea). Agents choose whether to commit criminal acts through the exercise of individual will. The law assumes exercise of will is a matter of free choice. Agents decide (choose) whether to commit bad acts. The law punishes bad acts committed with the requisite mental state. As such, law presupposes free will.

Some philosophers claim that the criminal law rests on a mistake: there is no free will. All behavior is caused. Human action is not the result of individual choice as we are all just nodes in a long causal chain. The experience (i.e., the feeling) that we are in control and making choices is just an epiphenomenal illusion. We are no more in control of our behavior than a robot.

The authors describe themselves as “compatibalists,” meaning “that despite the laws of physics and our increasing ability to understand the mechanistic, causally determined nature of the physical underpinnings of human actions and decisions, we are still responsible for such actions and decisions….” (P. 75.) Nevertheless, the authors acknowledge the philosophical sophistication of some of the arguments of determinists. They reply with a discussion of the case of “Bert.” Bert forgot that he had custody of his kids for the weekend and left for Las Vegas. The kids spent the weekend alone in Bert’s apartment and he was arrested for child neglect. Bert’s executive capacities were all working (he possessed what the authors describe as “diachronic agency”): he had no excuse. He was responsible for the kids and he failed to meet that responsibility. Hard determinists want to argue that Bert had no choice in the matter: his genes, his environment, and his brain all made him act as he did. The authors spend little time with the arguments of hard determinists, likening the position to hardcore skepticism: “Nothing—no causal powers available to persons within our universe—could satisfy the free will skeptics.” (P. 209.)

How do the authors get from facts about the brain (i.e., executive functions) to responsibility assessments? Recall that the unique claim made by these authors is that neuroscientific facts can inform responsibility assessments, not just by providing facts to be taken into account but by setting standards for responsible conduct. In the case of Bert, they argue, he was possessed of all the cognitive capacities necessary to conform his conduct to the law. He could have trained himself to be more aware of his schedule. He could have given himself reminders. It was not that difficult for Bert to habituate himself to be a responsible agent. Bert has no defense to the charge of neglect.

A critical comment on this approach to responsibility is to agree that one cannot be held responsible for action if one lacks the neuronal faculties necessary for proper conduct. This is uncontroversial. But the authors of this engaging book make a further claim. They claim that these very capacities themselves set the standard for responsible action. Such a claim looks dangerously close to a violation is the is-ought fallacy. Selim Berker—in a sublime article on this point—argued that no scientific facts can generate normative consequences. Neuroscientific facts, he argued, are normatively inert.2 Thus, sentences like this one are worrying: “Evidence from cognitive science and neuroscience can illuminate and inform the nature of responsibility and agency in specific, testable ways.” (P. 12.)

It is one thing to identify cognitive capacities necessary for action and to then use neuroscientific as well as behavioral evidence of their presence or absence to make responsibility judgments. It is quite another thing to suggest that the neuroscientific evidence for those behavioral capacities and neuroscientific evidence generally provide the criteria for assessments of responsible conduct. To the extent that the latter claim is made, such a controversial move requires further argument, lest one attract the criticism of Brain Overclaim Syndrome.

This is a thoroughly engaging and well-written book. The authors survey much of the responsibility literature and provide engaging discussions of the leading positions. Their suggestions for the use of neuroscientific evidence in various contexts (e.g., assessment of minors) is particularly persuasive. This is a book to be read by anyone with an interest in law and neuroscience, responsibility, criminal law, and ethics.

Download PDF
  1. See Stephen J. Morse, Brain Overclaim Syndrome and Criminal Responsibility: A Diagnostic Note, 3 Ohio St. J. Crim. L. 397 (2006).
  2. See Selim Berker, The Normative Insignificance of Neuroscience, 37 Phil. and Pub. Affairs 293 (2009).
Cite as: Dennis Patterson, The Neuroscience of Responsibility, JOTWELL (April 17, 2019) (reviewing William Hirstein, Katrina Sifferd & Tyler K. Fagan. Responsible Brains: Neuroscience, Law, and Human Culpability (2018)),