Various authors debate the question of whether neuroscience is relevant to criminal responsibility. However, a plethora of different techniques and technologies, each with their own abilities and drawbacks, lurks beneath the label “neuroscience”; and in criminal law responsibility is not a single, unitary and generic concept, but it is rather a syndrome of at least six different concepts. Consequently, there are at least six different responsibility questions that the criminal law asks—at least one for each responsibility concept—and, I will suggest, (...) a multitude of ways in which the techniques and technologies that comprise neuroscience might help us to address those diverse questions. In a way, on my account neuroscience is relevant to criminal responsibility in many ways, but I hesitate to state my position like this because doing so obscures two points which I would rather highlight: one, neither neuroscience nor criminal responsibility are as unified as that; and two, the criminal law asks many different responsibility questions and not just one generic question. (shrink)

In their paper “Is psychopathy a mental disease?”, Thomas Nadelhoffer and Walter Sinnott-Armstrong argue that according to any plausible account of mental disorder, neural and psychological abnormalities correlated with psychopathy should be regarded as signs of a mental disorder. I oppose this conclusion by arguing that at least on a naturalistically grounded account, such as Wakefield’s ‘Harmful Dysfunction’ view, currently available empirical data and evolutionary considerations indicate that psychopathy is not a mental disorder.

The question of whether psychopaths are criminally and morally responsible has generated significant controversy in the literature. In this paper, we discuss what relevance a psychopathy diagnosis has for criminal responsibility. It has been argued that figuring out whether psychopathy is a mental illness is of fundamental importance, because it is a precondition for psychopaths’ eligibility to be excused via the legal insanity defense. But even if psychopathy counts as a mental illness, this alone is not sufficient to show the (...) insanity defense is applicable; it must also be shown that, as a result of the illness, specific deficits in moral understanding or control are present. In this paper, we show that a diagnosis of psychopathy will generally not indicate that a defendant is eligible for an insanity defense. This is because the group of individuals subsumed under the diagnosis is so heterogeneous that while some psychopaths do show significant impairments in affect and control which may impact on their responsibility, many psychopaths are not incapacitated in a way relevant to responsibility. (shrink)

Philosophical compatibilism reconciles moral responsibility with determinism, and some neurolaw scholars think that it can also reconcile legal views about responsibility with scientific findings about the neurophysiological basis of human action. Although I too am a compatibilist, this paper argues that philosophical compatibilism cannot be transplanted “as-is” from philosophy into law. Rather, before compatibilism can be re-deployed, it must first be modified to take account of differences between legal and moral responsibility, and between a scientific and a deterministic world view, (...) and to address a range of conceptual, normative, empirical and doctrinal problems that orbit its capacitarian core. (shrink)

The recurring claim that the construct of psychopathy is value laden often is not qualified in enough detail. The chapters in this part of the volume, instead, investigate in depth the role and significance of values in different aspects of the construct of psychopathy. Following these chapters, but also by offering a background to them, we show how certain values are involved in the characterisation of psychopathy, inform societal needs satisfied by this construct, and have a central role in determining (...) whether psychopathy is a mental disorder. Moreover, we relate this description to our criticism of the view that the entrenchment of the notion of psychopathy with values in principle renders it irreconcilable with sound psychiatric theory and practice. However, we also recognize that the value-ladenness of psychopathy leaves open other important challenges. Meeting them needs addressing interdisciplinary interrelated issues that have empirical, normative, and theoretical dimensions. (shrink)

Since the 90’s, neurolaw is on the rise. At the heart of heated debates lies the recurrent theme of a neuro-revolution of criminal responsibility. However, caution should be observed: the alleged foundations of criminal responsibility (amongst which free will) are often inaccurate and the relative imperviousness of its real foundations to scientific facts often underestimated. Neuroscientific findings may impact on social institutions, but only insofar as they also engage in a political justification of the changes being called for, convince populations, (...) and take into consideration the ensuing consequences. Moreover, the many limits of neuroscientific tools call for increased vigilance when, if ever, using neuroscientific evidence in a courtroom. In this article, we aim at setting the basis for future sound debates on the contribution of neuroscience to criminal law, and in particular to the assessment of criminal responsibility. As such, we provide analytical tools to grasp the political and normative nature of criminal responsibility and review the current or projected use of neuroscience in the law, all the while bearing in mind the highly-publicized question: can neuroscience revolutionize criminal responsibility? Answering this question implicitly requires answering a second question: should neuroscience revolutionize the institution of criminal responsibility? Answering both, in turn, requires drawing the line between science and normativity, revolution and dialogue, fantasies and legitimate hopes. (shrink)

Editorial introduction to the special issue of the European Journal of Analytic Philosophy.

Moral Enhancement wird von einer Reihe einflussreicher Bioethiker propagiert, zum Teil mit dem Anspruch, dass nur dadurch die Menschheit vor ihrem selbstverschuldeten Untergang zu retten sei. Nachdem begründete Zweifel an der Eignung der zum Moral Enhancement vorgeschlagenen Psychopharmaka aufgekommen sind, wurden neurochirurgische Interventionen, insbesondere die Tiefe Hirnstimulation, vorgeschlagen. Diese Ad-hoc-Vorschläge stützen sich auf eine Handvoll neurochirurgischer Eingriffe an geistig schwer behinderten Menschen sowie die Psychochirurgie des letzten Jahrhunderts. In diesem Aufsatz geht es erstens um die Frage, ob Moral Enhancement durch (...) neurochirurgische Methoden überhaupt möglich ist und, wenn ja, inwiefern, und zweitens um die Frage nach dessen ethischer Vertretbarkeit, sofern es möglich ist. Mit den bisher vorgeschlagenen Methoden des neurochirurgischen Moral Enhancement könnte man zwar Aggressionen oder den Sexualtrieb reduzieren, sodass weniger Selbstkontrolle erforderlich wäre, um moralisch angemessen zu handeln. Theoretisch denkbar, aber bisher nicht durch empirische Evidenz gestützt, ist, dass neurochirurgische Eingriffe die Selbstkontrolle verbessern könnten. Nach dem Modell der moralischen Intelligenz von Carmen Tanner und Markus Christen lässt sich zeigen, dass dadurch allenfalls eine Komponente der moralischen Intelligenz verbessert werden könnte, nämlich die moralische Standhaftigkeit. Keiner der bisherigen Vorschläge zielt dagegen auf die Verbesserung der anderen vier Komponenten, also des moralischen Kompasses, der moralischen Sensibilität, der moralischen Urteilsfähigkeit und der moralischen Motivation. Ein umfassendes Moral Enhancement durch neurochirurgische Eingriffe ist mit den gegenwärtig verfügbaren oder vorgeschlagenen Methoden also nicht möglich. Allenfalls lässt sich in Zukunft durch Closed-Loop-Systeme, die bestimmte Impulse automatisch herunter regeln, ein moralkonformeres Verhalten erreichen. Eine nur technisch induzierte Verhaltensverbesserung wäre allerdings höchstens unter Zugrundelegung eines utilitaristischen Moralverständnisses als moralische Verbesserung anzuerkennen. (shrink)

Could neuroimaging evidence help us to assess the degree of a person’s responsibility for a crime which we know that they committed? This essay defends an affirmative answer to this question. A range of standard objections to this high-tech approach to assessing people’s responsibility is considered and then set aside, but I also bring to light and then reject a novel objection—an objection which is only encountered when functional (rather than structural) neuroimaging is used to assess people’s responsibility.

The way in which we characterize the structural and functional differences between psychopath and normal brains – either as biological disorders or as mere biological differences – can influence our judgments about psychopaths’ responsibility for criminal misconduct. However, Marga Reimer (Neuroethics 1(2):14, 2008) points out that whether our characterization of these differences should be allowed to affect our judgments in this manner “is a difficult and important question that really needs to be addressed before policies regarding responsibility... can be implemented (...) with any confidence”. This paper is an attempt to address Reimer’s difficult and important question; I argue that irrespective of which of these two characterizations is chosen, our judgments about psychopaths’ responsibility should not be affected, because responsibility hinges not on whether a particular difference is (referred to as) a disorder or not, but on how that difference affects the mental capacities required for moral agency. (shrink)

Feminist analyses address the way differences between the sexes are conceptualized and operationalized in society. In this paper, I discuss how violence by men and women is conceptualized as different in the psychological scientific discourses of forensic mental health. I suggest that these empirical discourses perpetuate assumptions of difference and discourage examination of similarities. Specifically, I will argue that neutralization techniques are frequently used that reduce women’s agency and responsibility for violence compared to their male counterparts, and compared to nonoffending (...) women. I discuss the implications for violence research and interventions for violence perpetrators. (shrink)

Direct brain intervention based mental capacity restoration techniques-for instance, psycho-active drugs-are sometimes used in criminal cases to promote the aims of justice. For instance, they might be used to restore a person's competence to stand trial in order to assess the degree of their responsibility for what they did, or to restore their competence for punishment so that we can hold them responsible for it. Some also suggest that such interventions might be used for therapy or reform in criminal legal (...) contexts-i.e. to make non-responsible and irresponsible people more responsible. However, I argue that such interventions may at least sometimes fail to promote these responsibility-related legal aims. This is because responsibility hinges on other factors than just what mental capacities a person has-in particular, it also hinges on such things as authenticity, personal identity, and mental capacity ownership-and some ways of restoring mental capacity may adversely affect these other factors. Put one way, my claim is that what might suffice for the restoration of competence need not necessarily suffice for the restoration of responsibility, or, put another way, that although responsibility indeed tracks mental capacity it may not always track restored mental capacities. (shrink)

Reimer ( Neuroethics 2008 ) believes that how we use language to characterize psychopathy may affect our judgments of moral responsibility. If we say a psychopath has a disorder we may reduce their responsibility for moral failure. If we say a psychopath is merely different, we may not reduce their responsibility. Vincent ( Neuroethics 2008 ) argues that if this were the case, a diagnosis of disorder would be both necessary and sufficient to reduce the responsibility of some agent for (...) moral failure. Vincent presents two examples to suggest that a disorder is neither necessary nor sufficient to exculpate an individual for moral failure: childhood and hypomania. Vincent suggests instead that our judgments of moral responsibility ought to be based on the individual’s capacity for moral agency. I will side with Vincent in this debate, but argue that the example she uses, hypomania, does not work. I will argue that a diagnosis of hypomania, part of Bipolar II Disorder, is sufficient to exculpate an individual for some moral failure. This is because there are responsibility-relevant capacities missing: the capacities for self-awareness and to control ones abilities. Without these capacities, the individual is not a responsible moral agent. Vincent will need to provide an alternative example to show that the presence of a disorder is not sufficient to exculpate an individual for moral failure. Whilst our use of language is important, that use reflects our judgments of the individual’s capacities for moral agency. Responsibilities are determined not only by capacities, but by the right kind of capacities, and this should be reflected in our moral judgments, and our use of language. (shrink)