MEi:CogSci Conferences, MEi:CogSci Conference 2012, Bratislava

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Cristina Siserman

Last modified: 2012-06-22


Motto: Actus non facit reum nisi mens sit rea (i.e. the act does not make a person guilty unless the mind is also guilty)

During my studies in law I was often reminded that “jus est ars boni et aequi” (i.e. law is the art of what is good and fair). Unfortunately, many examples from all around the world show that this is not always the case. Because of the irreparable consequences that an unfair sentencing can generate for an individual, law has to end being only an “ars” and become a proper “scientia” that uses scientific and reliable tools. Therefore, in the quest of assessing the legal and moral responsibility of an individual, cognitive science methods and tools, if used correctly and in a reliable way, can be of invaluable significance.
The current legal systems rely on the retributive premise, which implies that people freely choose their actions and should be punished accordingly. However, recent research shows that this position opposes the growing neuroscience evidence according to which moral actions are premeditated by structural features of the brain that are determined [1]. Because of this aspect, a great number of questions has been raised in the scientific, philosophical and legal community regarding the degree to which individuals can or should be held responsible for their actions.

In the last three decades, due to new developments in neuroscientific methods (fMRI, PET, MRI etc.) cognitive scientists and neurologists have brought up a series of scientific issues which have been perceived as challenging the existence of free agency in five of its dimensions: initiation of action, intention, decision, inhibition and control as well as phenomenology of agency [2]. One of the first studies, which claimed that individuals may not possess free will, originates in the experiment performed in 1983 by Libet, who argued that the brain decides to initiate an action at a time before there is a subjective awareness that a decision has taken place [3]. In 1999 Wagner added that the real causes of human actions are unconscious and therefore it would not be surprising that decisions may arise before an individual is actually conscious about them [4]. This series of claims was sufficient to stir the scientific community and consequently, in 2011 Haynes, claimed that human intentions can be predicted. He showed that the information that aided the prediction of the intention was available 5-7 seconds before the decision was made and was accurate up to 60% [5]. These empirical studies gave rise to some major concerns. The most serious implication is that without free agency there would be no longer a fundamental basis for moral responsibility or legal culpability, i.e. no one would deserve punishment for breaking the law or blame for immoral behaviour. Since on a conceptual level free agency is the ultimate condition for moral and legal responsibility, a no-free-will attitude presupposes the change of the entire basis of legal systems. But are there enough reasons for this shift to take place?

Research question
The objective of the present study is to analyse in an interdisciplinary manner (neuroscience, cognitive psychology, philosophy of science and philosophy of law) the way the neuroscientific developments in the field of free agency interact with law and their potential effects on the legal systems. The study addresses theoretically and empirically two major questions. Firstly, it aims to establish whether there is at present sufficient scientific research to support the idea that free agency has been challenged by the advancements in neuroscience and secondly, by recurring to legal professionals’ intuitions, to answer some subsequent questions regarding the degree of responsibility of individuals suffering from brain malfunctions. To what degree can one affirm that their brain processes stand behind their decisions? Are the neuroscientific methods reliable enough to show this aspect?

Hypothesis and rough line of argumentation
By accepting that our brain features are determined, one may envisage that individuals cannot be held responsible as they cannot control something that is predetermined. In this light, since all behaviour is caused by the brain, it can be potentially excused. This may be a way to look at things, but is it in fact the desirable one? My hypothesis is that the new advancements in neuroscience have not affected the general view of free agency, but have only increased our understanding about neural networks and generated a more mechanistic view on free agency. Furthermore, despite the promoted deterministic view, humans are still free agents and therefore, the fundamental criterion for the ascription of responsibility should be the individuals’ general capacity for rationality. Assuming that philosophical determinism (which is not to be confused with mechanism) poses a theoretical threat to free agency, concurrently, compatibilism (according to which free agency and determinism can coexist without being logically inconsistent) provides a satisfactory account for responsibility and hence for the stability of legal systems. Since I believe that compatibilism might represent a way out in this long debate, my intention is to support this claim with the results of an empirical study meant to examine the intuitions of legal practitioners regarding the way free agency is supposed to have been challenged by neuroscientific advances.

Experimental design
The empirical study targets legal practitioners (lawyers, judges and prosecutors) from different countries in Europe. The method used is a questionnaire, which comprises two parts that assess the consistency between the general beliefs of the participants and the way they use (or not) these beliefs in practice when determining the legal and moral responsibility of individuals. In the first part, the participants have to evaluate a series of statements, which measure their general attitude towards science, their views on religious, biological, environmental and social determinism, as well as the interaction between brain/mind and age, on one side, and free agency on the other side. In the second part, the participants are presented with five neuro-legal cases in which they assess the responsibility of the defendant, determine the treatment or type of punishment, which is to be applied to the defendant and, if applicable, decide on the duration of imprisonment in years that the defendant should receive. These cases are meant to test the trust, which the legal practitioners put in neuroscientific discoveries and the extent to which they are willing to admit them as evidence when assessing legal and moral responsibility.

Expected results and possible applications
Since the study is currently in progress, the results are only partial and will be available only at a later stage. However, my expectations are that this empirical study will support the thesis of the paper, according to which the majority of legal practitioners hold a compatibilist view, which reconciles the idea that some of our brain functions may be determined with the acknowledgement that humans have the capacity to choose a course of action from various alternatives. I also expect that, because of the remaining gap between science and law, legal practitioners are not yet prepared or maybe convinced enough of the necessity to accommodate some of the tools provided by cognitive science in the legal practice.
The study has a wide spectrum of application as it is addressed to both cognitive scientists and legal practitioners. The theoretical parts support the idea that scientists have to find a way to make their discoveries acknowledged while making sure that the information they disseminate to the public is completely valid and accurate. At the same time, the study urges the legal practitioners to consider reforming legal systems in a way more person-oriented rather than punishment-oriented while using the existing neuroscientific tools in a way that would “humanize” the legal systems and not as a means to create differences and extreme positions like arbitrary incrimination or full exoneration on the premise such as “my brain made me do it”.

[1] Mobbs, D., Lau, H., Jones, O., Frith, C., (2007), Law, Responsibility and the Brain, PLOS Biology, Vol. 5, Issue 4, p. 693-700.
[2] Roskies, A., (2010), How does neuroscience affect our conception of volition, Annual Review of Neuroscience, Vol. 33, p. 109-130.
[3] Libet, G., Gleason, E., Wright, E., Pearl, D., (1983), Time of Unconscious Intention to Act in Relation to Onset of Cerebral Activity, Brain, No. 106, p. 623-642.
[4] Wagner, D., Wheatley, T., (1999), Apparent Mental Causation Sources of the Experience of Will, American Psychologist, Vol. 54, No. 7, p. 480-492.
[5] Haynes, J., (2011), Decoding and Predicting Intentions, Annals of New York Academy of Science, p. 9-21.