Since our moral and legal judgments are focused on our decisions and actions, one would expect information about the neural underpinnings of human decision-making and action-production to have a significant bearing on those judgments. However, despite the wealth of empirical data, and the public attention it has attracted in the past few decades, the results of neuroscientific research have had relatively little influence on legal practice. It is here argued that this is due, at least partly, to the discussion on (...) the relationship of the neurosciences and law mixing up a number of separate issues that have different relevance on our moral and legal judgments. The approach here is hierarchical; more and less feasible ways in which neuroscientific data could inform such judgments are separated from each other. The neurosciences and other physical views on human behavior and decision-making do have the potential to have an impact on our legal reasoning. However, this happens in various different ways, and too often appeal to any neural data is assumed to be automatically relevant to shaping our moral and legal judgments. Our physicalist intuitions easily favor neural-level explanations to mental-level ones. But even if you were to subscribe to some reductionist variant of physicalism, it would not follow that all neural data should be automatically relevant to our moral and legal reasoning. However, the neurosciences can give us indirect evidence for reductive physicalism, which can then lead us to challenge the very idea of free will. Such a development can, ultimately, also have repercussions on law and legal practice. (shrink)

Freud justified his extensive theorizing about dreams by the observation that they were “the royal road” to something much more general: namely, our unconscious mental life. The current preoccupation with the theory of excuse in criminal law scholarship (including my own) can be given a similar justification, for the excuses are the royal road to theories of responsibility generally. The thought is that if we understand why we excuse in certain situations but not others, we will have also gained a (...) much more general insight into the nature of responsibility itself. Nowhere has this thought been more evident than in the century-old focus of criminal law theoreticians on the excuse of insanity, a focus that could not be justified by the importance of the excuse itself.In this paper I wish to isolate two theories of excuse, each of which instantiates its own distinctive theory of responsibility. One is what I shall call the choice theory of excuse, according to which one is excused for the doing of a wrongful action because and only because at the moment of such action's performance, one did not have sufficient capacity or opportunity to make the choice to do otherwise. Such a choice theory of excuse instantiates a more general theory of responsibility, according to which we are responsible for wrongs we freely choose to do, and not responsible for wrongs we lacked the freedom (capacity and opportunity) to avoid doing. The second I shall call the character theory of excuse, according to which one is excused for the doing of a wrongful action because and only because such action is not determined by (or in some other way expressive of) those enduring attributes of ourselves we call our characters. (shrink)

From 1965, the Swedish penal law does not require accountability as a condition for criminal responsibility. Instead, severely mentally disordered offenders are sentenced to forensic psychiatric care. The process that led to the present legislation had its origins in a critique of the concept of accountability that was first launched 50 years earlier by the founding father of Swedish forensic psychiatry, Olof Kinberg. The concept severe mental disorder is part of the Criminal Code as well as the Compulsory Mental Act. (...) The medical conditions for being sentenced to forensic psychiatric care are supposed to be the same as those for being admitted to involuntary psychiatric care. What these conditions are is not regulated in any law. For the guidance of the courts and others, there is a collection of examples in the government bill drafting the legislation in question. On the basis of these examples the content of the concept of severe mental disorder is chiselled out. However, the purposes of imposing penal law sanction and admitting someone to psychiatric care are not the same, and therefore the content of the concept severe mental disorder is bound to differ accordingly. Severe mental disorder is a legal concept that masks as a psychiatric one. In its applications in penal law, the court determines its content. But for the forensic psychiatrist it is more natural to interpret the term as a medical one. This creates a tension that has led to several controversies in recent criminal cases in Sweden. The best way to alleviate the situation is to discard the concept of severe mental disorder from criminal law. This will allow for a better separation of the roles of the psychiatrist and the court. (shrink)

Research Articles Michael S. Moore, Social Philosophy and Policy, FirstView Article.

Negligence is a problematic basis for being morally blamed and punished for having caused some harm, because in such cases there is no choice to cause or allow—or risk causing or allowing—such harm to occur. The standard theories as to why inadvertent risk creation can be blameworthy despite the lack of culpable choice are that in such cases there is blame for: (1) an unexercised capacity to have adverted to the risk; (2) a defect in character explaining why one did (...) not advert to the risk; (3) culpably acquiring or failing to rid oneself of these defects of character at some earlier time; (4) flawed use of those practical reasoning capacities that make one the person one is; or (5) chosen violation of per se rules about known precautions. Although each of these five theories can justify blame in some cases of negligence, none can justify blame in all cases intuitively thought to be cases of negligence, nor can any of these five theories show why inadvertent creation of an unreasonable risk, pure and simple, can be blameworthy. (shrink)

With the waves of reform occurring in mental health legislation in England and other jurisdictions, mental capacity is set to become a key medico-legal concept. The concept is central to the law of informed consent and is closely aligned to the philosophical concept of autonomy. It is also closely related to mental disorder. This paper explores the interdisciplinary terrain where mental capacity is located. Our aim is to identify core dilemmas and to suggest pathways for future interdisciplinary research. The terrain (...) can be separated into three types of discussion: philosophical, legal and psychiatric. Each discussion approaches mental capacity and judgmental autonomy from a different perspective yet each discussion struggles over two key dilemmas: whether mental capacity and autonomy is/should be a moral or a psychological notion and whether rationality is the key constitutive factor. We suggest that further theoretical work will have to be interdisciplinary and that this work offers an opportunity for the law to enrich its interpretation of mental capacity, for psychiatry to clarify the normative elements latent in its concepts and for philosophy to advance understanding of autonomy through the study of decisional dysfunction. The new pressures on medical and legal practice to be more explicit about mental capacity make this work a priority. (shrink)

According to many criteria, agency, intentionality, responsibility and freedom of decision, require conscious decisions. Freud already assumed that many of our decisions are influenced by dynamically unconscious motives or that we even perform unconscious actions based on completely unconscious considerations. Such actions might not be intentional, and perhaps not even actions in the narrow sense, we would not be responsible for them and freedom of decision would be missing. Recent psychological and neurophysiological research has added to this a number of (...) phenomena (the "new unconscious") in which behavior is completely unconscious or in which the decision or its execution is influenced by unconscious factors: priming, automatic behavior, habitualized behavior, actions based on plain unconscious deliberations, intrusion of information from the dorsal pathway, etc. However, since this makes up the largest part of the behavior which is generally regarded as action, intentionality, yet agency, responsibility and even compatibilist freedom of decision for the largest part of our behavior may be threatened. Such considerations have led to a lively debate, which, however, suffers from generalizations that lump all these unconscious phenomena together. In contrast, the aim of this article is to discuss individual unconscious influences on our behavior separately with respect to what extent they require changes in traditional conceptualizations. The first part (2-4) of the article outlines the "traditions" and their elaborations: the intentional causalist concept of action, an associated empirical theory of action and standard concepts of responsibility and compatibilist freedom of decision, as well as the challenges for them. In the second part (5-9), the aforementioned unconscious influences on our actions (except for automated and habitualized actions, which I discuss elsewhere) are examined: 1. unconscious priming, 2. dynamically unconscious motives, 3. dorsal pathway information influencing conscious decisions, 4. unconsciously altered execution of conscious intentions, 5. unconscious deliberations and decisions. To what extent do these phenomena C1. require a change in the concept of action, C2. curtail intentionality or agency, C3. responsibility and C4. freedom? The result is: The curtailments prove to be far less dramatic than they initially appear; they require more watchfulness but no conceptual change. (shrink)

September 11, 2001 brought to legal awareness an issue that has long puzzled metaphysicians. The general issue is that of event-identity, drawing the boundaries of events so that we can tell when there is one event and when there are two. The September 11th version of that issue is: how many occurrences of insured events were there on September 11, 2001 in New York? Was the collapse of the two World Trade Center Towers one event, despite the two separate airliners (...) crashing into each tower? Or were these two separate insured events? (shrink)

In this paper, I will critically assess the expressive justification of punishment recently offered by Christopher Bennett in The Apology Ritual and a number of papers. I will first draw a distinction between three conceptions of expression: communicative, motivational, and symbolic. After briefly demonstrating the difficulties of using the first two conceptions of expression to ground punishment and showing that Bennett does not ultimately rely on those two conceptions, I argue that Bennett’s account does not succeed because he fails to (...) establish the following claims: punishment is the only symbolically adequate response to a wrongdoing; and punishment is permissible if it is the only symbolically adequate response to a wrongdoing. (shrink)

This paper is intended to be a summary of the author's views on the relationship between law and morality worked out over the past three decades in jurisprudence. The paper preliminarily clarifies the matter by isolating some lines of cleavage separating different questions askable about this relationship. With this done, the author argues for two theses. One, that judges are obligated to use morality in their decisions in particular cases; and two, that the morality judges are obligated to use in (...) their judicial reasonings, is best seen as the natural lawyer sees it, namely, as being part of the law that obligates judges in their role as judges. The author not only believes these theses to be true; he also thinks that these theses are practically important, in that their acceptance by judges makes for better judging. (shrink)

Should a person who cannot appreciate the moral significance of legal norms qualify as a blameworthy actor simply because he has the capacity to comply with them for non-moral reasons? Such a person may lack any empathy for other human beings and view moral norms as arbitrary restraints on his self-interested behavior: does he nevertheless deserve moral blame when he makes an instrumentally “rational choice” to breach a norm governing his action? Should our answers to these questions depend on whether (...) we believe that the actor is morally responsible for lacking these moral emotions and understandings? In short, must we concern ourselves with those aspects of the agent's character – his goals, desires, values, emotions, and perceptions of what courses of action are available to him – that motivate his rational choices? Or are questions about what motivates the actor to exercise his capacity for rational choice irrelevant to our judgments concerning his moral culpability for violating some governing norm? One way of thinking about such questions is to ask what attributes a person must possess to qualify as an appropriate addressee of moral norms and a suitable object of moral blame. Must a moral agent have the capacity to respond to moral norms as a reason for his choices? Must he also be able to control those aspects of his character that impair his capacity to make moral choices? Most legal theorists insist that moral agents do not need such capacities to be fairly blamed for violating the minimal moral restraints that the criminal law imposes on their self-interested acts. (shrink)

The purpose of this work is to offer a critical examination of Immanuel Kant's ethic of suicide. Kant's suicidology marks an influential view regarding the moral stature of suicide, yet one that remains incomplete in important respects. Because Kant's moral views are rationalistic, they restrict moral consideration to rational entities. Many people who commit suicide are not rational at the time of its commission, for they suffer from severe mental illness. Because of this, Kant's suicidology devastatingly excludes certain human demographics (...) from moral consideration, current Canadian statistics indicating that such people mark one of the highest populations at risk of committing suicide in the first place. This work contains a presentation, analysis, and critique of Kant's ethic of suicide, leading to an attempt to state criteria for an adequate suicidology.Dept. of Philosophy. Paper copy at Leddy Library: Theses & Major Papers - Basement, West Bldg. / Call Number: Thesis2006.T66. Source: Masterss International, Volume: 45-01, page: 0101. Thesis --University of Windsor, 2006. (shrink)