Of course, if neuroscience were to ‘prove’ that we have no such thing as free will, we’d need to re-think our entire legal system. So on Valentine’s night I took my husband on a hot date to LSE to hear about neuroscience, responsibility and the law.
Because in its modern incarnation it is such a new and disputed discipline, the verdict from the excellent panel seemed to be that, like advances in DNA testing, neuroscience would most probably be used to support the legal process rather than to replace it, e.g., in determining brain development in young offenders or assessing pain in damages claims.
But given the claims being made in some quarters, they did cover some very interesting ground about the nature of the criminal justice system in particular. If justice tends partly to be retributive, partly restorative and partly distributive, a lack of genuine moral agency leaves only the latter two kinds of justice standing. Society would have a legitimate interest in these, but would find it hard to ‘judge’ in cases that would normally attract a retributive sentence, if neuroscience could be used to show that a person had no real choice over their actions (this ‘competence’ defence is already used in some cases). We can’t ‘blame’ people if they are not morally responsible. The panel again were very interesting on this point, suggesting that this would not so much affect verdicts as sentencing. As happens at present, a person might be found guilty of harming someone else, but if there were mitigating circumstances, the sentence they would receive would reflect a degree of leniency. These mitigating circumstances could be social, psychological or environmental, as well as biological, and neurobiology would be just one of several being considered.
I think the debate is likely to settle somewhere in between the idea of the hand you’re dealt and the way you play it – our DNA and brain structure may very well pre-dispose us to all kinds of behaviours, good and bad. But whether or not tests show our ‘meat’ reacting faster than our ‘mind’, these responses have been learned over time. So I suspect a complicated causal interplay between the meat and the mind, and would agree with the panel last night that, whether one precedes the other, as long as they both happen, we can still take the mind into account and therefore hold it responsible. So there may well be more appeals on the basis of a lack of mens rea or intent (diminished responsibility), but society will continue to have to hold individuals to account for unhelpful behaviour, irrespective of how it is motivated, to maintain public order. As Prof Roger Brownsword put it, the law might become more about managing risk than assigning blame, but it would still be required, and neurobiology might instead be used more to prevent criminal behaviour than to prosecute it.