Abstract
Neuroscience can relate to ethics and normative issues via the brain’s cognitive control network. This network accomplishes several executive processes, such as planning, task-switching, monitoring, and inhibiting. These processes allow us to increase the accuracy of our perceptions and our memory recall. They also allow us to plan much farther into the future, and with much more detail than any of our fellow mammals. These abilities also make us fitting subjects for responsibility claims. Their activity, or lack thereof, is at the heart of culpability. For instance, planning to kill someone is strong evidence of what the law calls men rea—a guilty mind. Claims about norms, or ethical “should” claims, express two-level propositions, directed at the behaving person at one level, and at that person’s mind and cognitive control network at another level. Thus, “People should stop themselves from hurting others,” is a claim about how people should behave and also a claim about how their cognitive control networks should behave—i.e., they should inhibit harmful behavior, or the intentions leading up to it. Planning is both an ability of the full person, and of that person’s mind. Neuroscience affirms the common notion, seen both in law and folk psychology, that what makes us guilty or culpable are certain events and states that exist in our minds. Overt behavior, including speech, is fallible evidence of these states and processes. Cases of negligence still involve the executive processes, but “negatively,” in that negligence results when certain types of executive activity fail to take place.
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Notes
“Mens rea” (“guilty mind”) refers to mental states or events, such as plans or intentions, that make a person culpable, given certain actions.
This could help with the sorts of duress cases that Coppola mentions. Coppola is right that we neglect the emotions in RB, short of making the point that the executive processes are tasked with emotional regulation, for instance, taking care to be sure that we express the right amount of emotion given the situation. Certainly “emotion” and “cognition” interact a great deal. The brain processes that subserve them are heavily interconnected, but nevertheless anatomically separate, which allows us to diagnose problems as either emotional or cognitive, which could have legal implications.
To be clear, I accept Baars’ idea that there is a global workspace that allows conscious contents to be widely “broadcast” to several modules. But Baars makes the same mistake that Levy and do by including the executive processes in his account of the neural locus of consciousness, calling it the “fronto-parietal” theory. See pages 103–108 of RB.
This responds to Patterson’s concern that we are committing what Bennett and Hacker (2003) call the “mereological fallacy,” which involves claiming that the referents of terms like “responsible” (and in fact all mental terms, such as “think,” “see,” or “attend to”) can only be full persons, and specifically cannot be brains or brain parts or processes. Bennett and Hacker, and Wittgenstein, are correct in what they say about how we refer to behaving persons when ascribing mental states. But at the same time, other brain processes are representing the minds of those persons. Theories that do not take the second level into account are unable to explain certain linguistic phenomena, such as referential opacities.
Rather than following Crimmens and Perry (1989) and referring to this phenomenon as “tacit reference,” as we did in RB, I have switched to a more neutral term “sub-reference.” Speaking of tacit reference might be taken to imply that there is no word token in the sentence that is doing the (sub) referring, which is often not true. Crimmens and Perry also do not hypothesize that two full propositions are expressed by the sorts of mental claims made above.
There may be a conceptual problem with Agule’s version of criterion 3, since the concept of an omission seems very close to the concept of a failure, which I argued above contains a “should have.”.
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Acknowledgements
I am indebted to the commentators for their focused and edifying remarks. Special thanks to Dennis Patterson for working to set up our Covid-cancelled conference, then assisting in the production of this issue. Thanks to Melinda Campbell, Andreas Kuersten, and Katrina Sifferd for comments.
Funding
Prof. Hirstein’s work was funded by a Templeton grant on The Philosophy and Science of Self-Control, administered by Alfred Mele.
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Hirstein, W. Neuroscience and Normativity: How Knowledge of the Brain Offers a Deeper Understanding of Moral and Legal Responsibility. Criminal Law, Philosophy 16, 327–351 (2022). https://doi.org/10.1007/s11572-021-09600-w
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DOI: https://doi.org/10.1007/s11572-021-09600-w