Mick Hartley

As an alternative to “it’s all society’s fault“, there is of course “it’s all my brain’s fault”. Here’s Raymond Tallis:

Imagine this futuristic courtroom scene. The defence barrister stands up, and pointing to his client in the dock, makes this plea: “The case against Mr X must be dismissed. He cannot be held responsible for smashing Mr Y’s face into a pulp. He is not guilty, it was his brain that did it. Blame not Mr X, but his overactive amygdala.” […]

In practice, most brain-blamers are not prepared to deny everyone’s responsibility for anything and everything. While the brain is blamed for actions that attract moral disapprobation or legal sanction, people do not normally pass responsibility on to their brains for good actions or for neutral actions such as pouring a cup of tea or just getting up for a stretch after a long sit down. When asked why he is defending a particular client, a barrister is unlikely to say: “My brain made me do it, your honour.” This pick-and-mix neuro-determinism is grounds for treating a plea of “neuro-mitigation” with caution.

So we still retain the distinction between events such as epileptic fits that can be attributed to brain activity and those that we attribute to persons who are more than mere neural activity. Deciding on the boundaries of our responsibility for events in which we are implicated cannot be handed over to neuroscientists examining the activity of the isolated brain in the laboratory. As Stephen Morse, a professor of law, has reminded us, it is people, not brains, who commit crimes and “neuroscience . . . can never identify the mysterious point at which people should be excused responsibility for their actions”. That moral, legal question must be answered not in laboratories but in courtrooms and legislatures.

Meanwhile, the neuromitigation of blame has to be treated with suspicion except in those instances where there is unambiguous evidence of grossly abnormal brain function or abnormal mental function due to clearcut illness that may have its origin in brain disease. Our knowledge of the relationship between brain and consciousness, brain and self, and brain and agency is so weak and so conceptually confused that the appeal to neuroscience in the law courts, the police station or anywhere else is premature and usually inappropriate. And, I would suggest, it will remain both premature and inappropriate. Neurolaw is just another branch of neuromythology.