Nita Farahany on Law and Neuroscience

As I have indicated in a previous post, I will be participating in a series of convention panels on "Evolution and Morality" at the Boston convention of the American Political Science Association, August 28-31. These panels are sponsored by the American Society for Political and Legal Philosophy.

One of the panels will be organized around Nita Farahany's paper on "Law and Behavioral Morality." Farahany is a law professor at Vanderbilt University who brings together law, philosophy, and biology in studying the fundamental assumptions about human nature in criminal law. In this paper, she considers how research in evolutionary science and neuroscience might influence our view of criminal responsibility and culpability.

She claims that as evolutionary biology and cognitive neuroscience provide biological explanations of human morality, this will strengthen the power of "behavioral morality--the idea that any behavior with a physical cause is either not blameworthy, or is less so." She seems to assume that "blameworthiness" presupposes "free will" understood as an uncaused cause. And, therefore, if we can show there is a physical cause for someone's criminal behavior, then that criminal's behavior "is either not blameworthy, or is less so."

If I have correctly interpreted what she is saying, then I disagree with her. As I have said in some previous posts, I see no reason to believe that legal responsibility and culpability must rest on the idea of "free will" understood as uncaused cause. The only possible uncaused cause is God. All other natural agents are subject to the causal order of nature. But we can still hold people responsible for their behavior as long as we understand moral responsibility correctly. The commonsense notion of liberty is power to act as one chooses regardless of the cause of the choice. Human freedom of choice is not freedom from nature but a natural freedom to deliberate about our natural desires so that we can organize and manage our desires through habituation and reflection to conform to some conception of a whole life well lived. This is how Aristotle and Darwin understood moral choice.

Darwin would say that human behavior arises from a complex interaction of innate temperament, individual experience, social learning, external conditions, and deliberate reasoning. Although we are not absolutely free of the causal regularities of nature, we are morally responsible for our actions because of our uniquely human capacity for reflecting on our motives and circumstances and acting in the light of those reflections. Darwin wrote: "A moral being is one who is capable of reflecting on his past actions and their motives--of approving of some and disapproving of others; and the fact that man is the one being who certainly deserves this designation is the greatest of all distinctions between him and the lower animals."

Against Farahany's "behavioral morality," I agree with Stephen Morse--a law professor at the University of Pennsylvania Law School who specializes in psychology and law--that the law's conception of responsibility does not require "contra-causal freedom." It requires only that human beings have sufficient practical rationality to understand their choices and to act on their deliberate decisions. When rationality is so diminished that someone cannot understand or act on his choices--a child or someone who is insane, for example--then we excuse their behavior and do not hold them fully responsible for their actions. But this conception of moral and legal responsibility as based on the capacity for practical deliberation or rationality does not require any transcendence of natural causality.

Under this commonsense conception of responsibility, research in evolutionary science and neuroscience could have some interesting implications for law, but it poses no fundamental challenge to the traditional understanding of legal responsibility.

Farahany thinks that neuroscience could radically challenge the legal standard of the "reasonable person." The standard of reasonableness is a prediction of what the normal or average person will do in a given set of circumstances. But while the criminal law now relies on a "fictitious concept of reasonableness," neuroscience, Farahany claims, could allow us to "define objective reasonableness by a scientifically robust understanding of human behavior." She writes:

"Suppose, for example, science is able to predict that all people with lesions of a certain size and shape in the frontal lobe who also have certain environmental triggers, such as childhood abuse, will become robbers as adults. Society may choose that given the distribution of normal human capacities, that such persons cannot be held as agents under criminal law when they later rob as adults. Or, society may also decide that because of the aspirational goals of the criminal law--to set norms of human behavior--that even those people will be held criminally accountable when they commit violent robberies, but not when they commit other robberies. Criminal law will have to balance its goals--promoting social welfare, reifying and setting social norms--with preserving its legitimacy. If, indeed, one hundred percent of individuals are unable to comply with a set norm in criminal law, and science can inform this, criminal law will likely need to reformulate this norm."

To "suppose" that biological science could ever give us such 100% predictability of behavior is unbelievable. Isn't this scenario far more "fictitious" than the traditional standards of reasonableness? Such absolute and precise predictability is not achievable for a historical science like behavioral biology. To imagine such a scenario is to ignore the distinctive traits of biological phenomena--individuality, particularity, contingency, plasticity, and historicity. Even genetically identical bacteria show individuality in their behavior. We can't even predict the precise behavior of fruit flies with 100% accuracy. Even identical twins are not really identical, because each will show individual traits. One of the prominent themes of contemporary neuroscience is the plasticity of the brain--because the brain is constantly being reconfigured by experience, and sometimes this reflects mental effort, when individuals consciously overcome abnormal neural circuitry by using mental concentration to change the circuitry. For example, Dr. Jeffrey Schwartz has shown how this can happen with obsessive compulsive patients who are taught to use mental effort to change their brains.

Farahany speaks of "certain environmental triggers, such as childhood abuse." How exactly would she specify this precisely enough to enable 100% predictability? Do these "environmental triggers" include all of the cultural history and life history experience of each individual? And how would she specify "childhood abuse"? Does this imply some generic conception that would abstract from all the particularity of concrete cases of abuse? If so, wouldn't this ignore the uniqueness of each case that would create individual variation and thus prevent 100% predictability?

Rather than foreseeing that neuroscience will some day develop deterministic models of human behavior that will replace traditional commonsense psychology, as Farahany suggests, I foresee that neuroscience will, at best, only confirm that commonsense psychology in all of its uncertainty.

Here I am building on some previous posts on the neuroscience of human behavior, which can be found here, here, here, and here.