Abstract
This essay responds to Hirstein, Sifferd and Fagan’s book, Responsible Brains (MIT Press, 2018), which claims that executive function is the guiding mechanism that supports both responsible agency and the necessity for some excuses. In contrast, I suggest that executive function is not the universal acid and the neuroscience at present contributes almost nothing to the necessary psychological level of explanation and analysis. To the extent neuroscience can be useful, it is virtually entirely dependent on well-validated psychology to correlate with the neuroscientific variables under investigation. The essay considers what executive function is and what the neuroscience adds to our understanding of it. Then it addresses moral and legal responsibility generally, and specific doctrines. Executive function is seldom found to be the most perspicuous approach to any of the general or specific moral and legal questions.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
W. Hirstein, K.L. Sifferd and T.K. Fagan, Responsible Brains: Neuroscience, Law, and Human Culpability (M.I.T. Press, 2018). Hereinafter, I shall refer to both the book and its authors interchangeably as RB.
RB, p. 9. Later, in the midst of RB’s central chapter on criminal responsibility, it adds the following:
The primary thesis of this book is that the folk and legal concepts underpinning the structure of criminal offenses and verdicts…implicitly refer to a particular set of cognitive functions that reside primarily in the prefrontal lobes of the brain and are understood by cognitive scientists as executive functions. RB, p. 85.
Michael Moore has similar aspirations for the neuroscience of executive functions, but is apparently less optimistic about current prospects:
The challenge to contemporary neuroscience is to gain detailed and reliable knowledge of the brain structures necessary for there to be executive control functions in persons…[T]he best way to answer that challenge would be by identifying tokens of brain states identical to tokens of intentions, desires and beliefs. Since that is not to be hoped for in the foreseeable future, the existence of particular disabilities on an occasion will have to be generated by general inabilities, and these latter might be identified by damaged or absent brain structures needed to possess such inabilities in general.
Michael S. Moore, Mechanical Choices: The Responsibility of the Human Machine (Oxford University Press, 2020) at 365 (italics in original).
S. Goldstein et al., Introduction: A History of Executive Functioning as a Theoretical and Clinical Construct, in S. Goldstein and J.A. Naglieri, eds.,Handbook of Executive Functioning (Springer,2014). The notion that people had “regulatory” or “control” functions goes back much further, most famously to the case of Phineas Gage.
Structural magnetic resonance imaging (MRI), which measures brain anatomy, was discovered in the late 1970s but has played a much lesser role in the development of contemporary behavioral neuroscience.
Jeffery L. Cummings and Bruce L. Miller, Conceptual and Clinical Aspects of the Frontal Lobes, in Jeffrey L. Cummings and Bruce L. Miller, eds., The Human Frontal Lobes: Functions and Disorders, Second Edition 12, 15–18 (The Guilford Press, 2007); Joaquin M. Fuster, The Prefrontal Cortex, Fourth Edition 178ff. (2008); Joel H. Kramer and Lovingly Quitania, Bedside Frontal Lobe Testing, in. id. at 2279, 279–285; Muriel D. Lezak et al., Neuropsychological Assessment, Fourth Edition 35–37 (Oxford University Press, 2004). There is some variation among writers concerning the characterization of executive functions, but the description I will give is common and sufficient for our purposes.
Neil Levy, Consciousness and moral Responsibility (Oxford University Press, 2014). This view is also grounded in contemporary neuroscience.
Ralph Adolphs, “The unsolved problems of neuroscience,” 4 Trends in Cognitive Science 173 (2015); Matthew Cobb, The Idea of the Brain: The Past and Future of Neuroscience (Basic Books, 2020).
Gregory A. Miller, “Mistreating psychology in the decades of the brain,” 5 Perspectives on Psychological Science 716 (2010); Andrea L. Glenn and Adrian Raine, “Neurocriminology: implications for the punishment, prediction and prevention of criminal behaviour,” Nature Reviews: Neuroscience 54 (2014).
Yael Niv, The Primacy of Behavioral Research for Understanding the Brain, in Adam J. Lerner, Samuel Cullen and Sarah-Jane Leslie, eds., Current Controversies in Philosophy of Cognitive neuroscience (Routledge, 2020) at 134.
Stephen J. Morse, Lost in Translation: An Essay on Law and Neuroscience, in Michael Freeman, ed., 13 Current Legal Issues 2010: Law and neuroscience (Oxford University Press, 2011) at 529, 540.
See Lezak et al., note 5 supra, at 36 (“Many of the behavior problems arising from impaired executive functions are apparent even to casual or naïve observers.”).
RB claims that folk psychology is valid because its mental states and processes refer to underlying brain states and processes, p. 75.
Note 8 supra.
RB, p. 46. Their theory also encompasses potential liability for unplanned, unintentional cases of risk creation.
J.M. Fischer and Mark Ravizza, Responsibility and Control: A theory of Moral Agency (Cambridge University Press, 1998).
RB, p. 54. MWS is later explained in more detail. Action or omission and the two criteria quoted are necessary but not sufficient for responsibility. Id. at 56. RB also says that situation and cultural factors may also partly determine responsibility, but this statement is obscure and never explained.
Notice that this account supports my suggestion that RB accepts a somewhat broader view of responsibility that does not require self or habit cultivation.
RB, p. 62.
RB, p. 68.
RB, p. 70.
RB, pp. 72–73 (italics added).
RB, pp. 80–81, quoting H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford University Press, 1968) at 227.
RB, p. 82. RB adopts the fair opportunity requirement of Hart and of Brink and Nelkin, quoting David Brink and Dana Nelkin, Fairness and the Architecture of Responsibility, in D. Shoemaker, ed., Oxford Studies in agency and Responsibility (Oxford University Press, 2013) at 284. But whether “fair opportunity” is an independent responsibility condition is questionable. Michael Moore thinks it is not and that it is simply one aspect of an independent control excuse. Michael S. Moore, Mechanical Choices, note 2 supra, 317–322.
Michael S. Moore, Act and Crime: The Philosophy of Action and Its Implications for Criminal Law (Clarendon Press, 1993) at 113–165.
Professor Moore believes, however, that there should be an independent control excuse. Michael S. Moore, Mechanical Choices, note 2 supra, at 313–372. Nevertheless, despite his account of volition, he inconsistently terms it a volitional excuse.
RB, p. 76. The scare quotes are in the original.
E.g., Stephen J. Morse, “Culpability and control,” 142 U. Penn. L. Rev. 1587, 1641–1652 (also arguing against Moore’s “no act” claim).
Hart, note 21 supra, at 32–33, 152–153.
Id. at 153.
Id. at 32–33.
Morse, supra note 26, at 1610 ff; “Uncontrollable urges and irrational people,” 88 Virginia L. Rev. 1025 (2002); Against Control Tests for Criminal Responsibility, in P. Robinson et al., eds., Criminal Law Conversations (Oxford University Press, 2009) at 449–471 (including critical reviews of my original argument and my response to them).
My critics in Against Control Tests, note 30 supra, scarcely try.
Mechanical Choices, note 2 supra, at 313–372. I criticized an earlier but essentially the same version of Moore’s position in, Moore on the Mind, in K.K. Ferzan and S.J. Morse (eds.), Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore (Oxford University Press, 2016) at 233, 243–246.
R v. Parks, [1992] 2 S.C.R. 871.
RB, p. 143.
Ibid. (scare quotes in original).
RB, p. 148 (italics in original).
RB, pp. 150–151 (italics in original). The final statement refers to alien hand cases, but it is meant to apply to unwilling addicts.
Brief of Amici Curiae 11 Addiction Experts in Support of Appellee, Commonwealth v. Julie Eldred, Massachusetts Supreme Judicial Court, SJC-12279 (2017). Such brain-based addiction excuse cases are beginning to proliferate, but science no more supports such an excuse than it did when the Supreme Court rejected such an excuse in Powell v. Texas, 392 U.S. 514 (1968) (Justice Marshall wrote the plurality opinion).
RB, p. 152.
RB, p. 160.
RB, p. 168 (quotes in original).
RB, p. 169.
RB, p. 172.
Francis X. Shen, “Legislating neuroscience: the case of juvenile justice,” 46 Loy. L. Rev. 985 (2013).
RB, p. 177.
Steven Penney, “Impulse control and criminal responsibility: lessons from neuroscience,” 35 Int. J. L. and Psychiatry 99 (2012).
Richard Rogers, “APA’s position on the insanity defense: empiricism versus emotionalism,” 42 Am. Psychologist 840 (1987).
RB, p. 182.
RB, p. 183.
RB, p. 184.
Michael S. Moore, “The quest for a responsible responsibility test: Norwegian insanity law after Breivik,” 9 Criminal Law and Philosophy 645 (2014).
Morse, Moore on the Mind, note 32 supra, at 239.
RB, p. 198.
Stephen J. Morse, Preventive Detention of Psychopaths and Dangerous Offenders, in Kent Kiehl and Walter Sinnott-Armstrong, eds., Handbook of Psychopathy and the Law (Oxford University Press, 2013) at 321 (developing the full argument, noting that most US jurisdictions now reject using psychopathy as the basis for an insanity defense and suggesting that other potential means of preventively detaining psychopaths also suffer from deficiencies).
RB, p. 201.
RB, p. 217.
Author information
Authors and Affiliations
Corresponding author
Additional information
Publisher's Note
Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.
Rights and permissions
About this article
Cite this article
Morse, S.J. Is Executive Function the Universal Acid?. Criminal Law, Philosophy 16, 299–318 (2022). https://doi.org/10.1007/s11572-021-09607-3
Accepted:
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11572-021-09607-3