Brief update

I am drafting a research proposal. Here are some of the papers I came across while seeking references for my proposal – all the papers cite Greene & Cohen 2004.

Here is a 2006 contribution by Roskies on the problem of determinism vs free will.

Here is Aronson 2007 (no full text available) on Brain imaging, culpability and the juvenile death penalty.

SJ Morse 2007 on culpability and the insanity defence in the US legal system.

A very recent study by Brembs, who investigated decision-making in invertebrates and argued that free will is a biological trait.

Vincent 2010 on the relevance of neuroscience to criminal responsibility.

De Brigard et al 2009 on responsibility and the brain sciences.

Sommers 2010 on experimental philosophy and free will.

Bjornsson 2011 on judgments of responsibility.

 

 

The “free will” debate

Compatibilists think that determinism can be compatible with free will and with the moral appraisal of actions. Incompatibilists think it cannot.

With regard to folk psychology of “free will”, Nichols and Knobe were able to provoke both compatibilist and incompatibilist intuitions from people, depending on whether the scenarios they presented to the subjects was “affect laden”. The subjects were instructed to imagine inhabitants of a hypothetical deterministic universe, performing actions that violate widely accepted moral rules. The subjects were much more likely to ascribe moral agency to the hypothetical person, when the violation of a moral rule had an intense emotional component (e.g. killing one’s family vs not paying taxes). Nichols has been working on this issue for quite some time.

Greene and Cohen think our “folk psychology” belief in “free will” is an illusion:

we feel as if we are uncaused causers, and therefore granted a degree of independence from the deterministic flow of the universe, because we are unaware of the deterministic processes that operate in our own heads.

The trolley dilemma

The following account of the trolley dilemma (first introduced by P. Foot) is based on K.A. Appiah (p.89).

The trolley dilemma shows that there is a conflict between the moral intuitions on which philosophers rely, a conflict that some psychologists suggest should lead us to question the intuitions many moral theories are intended to justify and support.

In one scenario (trolley case), there is a runaway trolley hurtling down the tracks, and it’s on course to kill five people who are, unavoidably, in its path. You can save those five people, but only by hitting a switch that will pull the trolley onto a side track, where it will kill one person. Should you do it? Philosophers, and 80 to 90% of respondents when polled, say yes.

In a second scenario (footbridge case), the trolley, once again, is hurtling toward the five people. This time you’re on a footbridge over the tracks, next to a 300-pound man. The only way you can save those five people is by pushing the 300-pound man off the bridge and onto the tracks. His body mass will stop the runaway trolley, but he’ll be killed in the process. Should you do it? Most of us, philosophers and non-philosophers alike, say no.

(These two scenarios were initially introduced to explore our moral intuitions regarding the doctrine of double effect. I am familiar with the application of this doctrine in end-of-life ethics, as a moral justification of administration of potentially life-shortening doses of pain killers to suffering patients at the end of life).

There should be an important difference between the two scenarios, that justifies the different responses. But it is not clear whether that is the case. Robert Nozick said the different responses depend on our basic aversion to risk. Greene have argued that pushing someone is more emotionally salient (“up close and personal”) than hitting a switch and performed an fMRI study; Greene’s conclusions is that there is no good moral reason for us making a distinction between the trolley and the footbridge case. Greene’s hypothesis reminds me of Primo Levi’s account of the Nürnberg trials. Asked about the reasons behind the introduction of mass killing by means of gas chambers and incinerators, a former Nazi officer replied: “[we invented and built gas chambers] to make it possible for officers to do what they did, without going insane.”  Levi discusses the fundamental role played by “impersonal” killing methods in making a massacre of such proportions emotionally bearable for the perpetrators.

According to Appiah, the trolley & footbridge problems are “moral emergencies” (limited decision-time + clear & simple set of options + something of high moral significance is at stake + no one but you can intervene).

The subjective character of experience

In “What is it like to be a bat?”, Thomas Nagel argues against scientism, physicalism & reductionism. Reductive analyses of the mental do not capture the subjective character of experience, which is not analyzable in terms of any explanatory system of functional states, or intentional states.

Bat sonar, though clearly a form of perception, is not similar in its operation to any sense that we possess, and there is no reason to suppose that it is subjectively like anything can experience or imagine. [...] Our own experience provides the basic material for our imagination, whose range is therefore limited [...] it tells me only what it would like for me to behave as a bat behaves. But that is not the question. I want to know what it is like for a bat to be a bat. [...] To the extent that I could look and behave like a wasp or a bat without changing my fundamental structure, my experiences would not be anything like the experiences of those animals. On the other hand, it is doubtful that any meaning can be attached to the supposition that I should possess the internal neurophysiological constitution of a bat.

Nagel agues for

the existence of facts beyond the reach of human concepts.

In conclusion, Nagel discusses the gap between the subjective & the objective understanding of the mental:

It is difficult to understand what could be meant by the objective character of an experience, apart from the particular point of view from which its subject apprehends it. [...] Most of the neo-behaviorism of recent philosophical psychology results from the effort to substitute an objective conception of mind for the real thing, in order to have nothing left over, which cannot be reduced. If we acknowledge that a physical theory of mind must account for the subjective character of experience, we must admit that no present conception gives us a clue how this could be done.

Neurolaw, or: law & neuroscience

Goodenough & Tucker argue that the term “neurolaw” has several meanings:

1. Law of neuroscience. For example, the regulation of scientific research, consciousness & brain death, cognitive enhancement, intellectual property.

2. Neuroscience of thought and behavior of interest to the law. For example, truth-telling and lie detection, memory, evidence, relevance, prejudice, responsibility.

3. Neuroscience of the law itself: cognition and behavior of law, as it is created, enforced, and applied. For example, the neural bases of our moral intuition, neuroscience of punishment, juveniles.

Lie detection

There are companies that market fMRI-based lie-detection services for litigation purposes. Lie-detection techniques share the common assumption that deception involves detectable neural correlates.

Patterson & Pardo are critical:

if lies, knowledge, and intent are mistakenly thought to be identical with particular brain states, then proof of the brain states will appear to provide conclusive proof of the correspondent mental states – whereas behavioral evidence should override evidence based on brain states.

P&P argue against the equation mind = brain (materialism), while at the same time rejecting Cartesian dualism. In their views, the “mind” is an array of abilities exercised by a person: sensations, perceptions, cognition, cogitation, affectations and volition.

Qualia & conscious states

The term “qualia” (analogy with “quanta”) was introduced to signify the (allegedly) “qualitative” character of experience (“what it’s like”, “how it feels” to have a certain mental state, feeling, perception, thought, desire). Proponents of this notion are (among others) Ned Block and Chalmers. Contra Bennett & Hacker, Searle argues that “consciousness” and “qualia” are coextensive terms and advances three theses:

1. Conscious states are qualitative, subjective, and unified. Subjective, in the ontological sense that they only exist as experienced by a human or animal subject. And they are unified in the sense that any conscious state exists as part of one big conscious state, my present field of consciousness. Conscious phenomena are concrete phenomena that go on in space-time, they are not abstract entities like numbers.
2. Consciousness is entirely caused by brain processes.
3. Conscious states exist in the brain, at a lever higher than that of the individual neuron.

Bennett & Hacker quote Wittgenstein’s words:

Only of a human being and what resembles (behaves like) a living human being can one say: ot has sensations [...] is conscious or unconscious

and argue that “therefore” (but I fail to see the connection here) consciousness cannot exist in brains, because brains are incapable of exhibiting the appropriate behavior. Only the whole person (or animal) is capable of that. (This is the mereological fallacy again.) To be consistent with this position, B&H are bound to conclude that qualia do not exist, because qualia are consciousness in brains.

Searle replies by stressing that Wittgenstein’s was a linguistic (“… can one say… “) and not an ontological analysis:

It is a fallacy to say that the conditions for the successful operation of the language game are conditions for the existence of the phenomena in question.

Searle adds that H&B’s argument against brain as subject and agent of mental events (e.g. “my brain thinks”) does not carry over into brain as locus of mental events (e.g. “thinking occurs in the brain”). Furthermore, Searle contends that the denial of the reality and spatial location of qualia prevents H&B from giving a coherent causal account of the relation of neural processes to mental events: they say the neural processes are causally necessary for a mental process to occur; but we need to know, in that context, what is causally sufficient.

The mereological fallacy

“Mereological fallacy” means attributing to parts [of an animal] attributes that are properties of the whole [animal]. “Meros” means “part” in ancient Greek.

Bennett & Hacker write:

Leading figures of the first two generations of modern brain-neuroscientists were fundamentally Cartesians. Like Descartes, they distinguished the mind from the brain and ascribed psychological attributes to the mind. [...] The third generation of neuroscientists, however, repudiated the dualism of their teachers. In the course of explaining the possession of psychological attributes by human beings, they ascribed such attributes not to the mind but to the brain or parts of the brain. [...] It was a characteristic feature of Cartesian dualism to ascribe psychological predicates to the mind, and only derivatively to the human being. [...] But the predicates which dualists ascribe to the immaterial mind, the third generation of brain neuroscientists applied unreflectively to the brain instead.

But, the authors argue:

Psychological predicates are predicable only of a whole animal, not of its parts.

I am not sure if I understand this argument. The body – including the brain – can be ascribed predicates that are functionally equivalent to those psychological predicates ascribed to persons. If I think, it is because my body does something which is functionally equivalent to what we call – speaking of what the person does – “thinking”.

To the “mereological fallacy” argument, Dennett replies:

It is not a fallacy. We do not attribute a fully fledged belief to the brain parts [...]. We attribute an attenuated sort of belief and desire to these parts, belief and desire stripped of many of their everyday connotations (about responsibility and comprehension, for instance). [...] When we engineer a complex system (or reverse engineer a biological system like a person or a person’s brain), we can make progress by breaking down the whole wonderful person into subpersons of sorts agentlike systems that have part of the prowness of a person.

Does neuroscientific evidence undermine retributivism?

Greene & Cohen have argued that neuroscientific evidence undermines retributivism, because:

1. Retributive punishment decisions are correlated with brain activity associated with more “emotional” rather than “cognitive” processes. This undermines the status of such decisions, because only “cognitive” processes constitute “genuine moral reasoning” that can give access to “independent moral truth”.

2. Retributivist theories depend on the “free will” hypothesis. There is neuroscientific evidence against that hypothesis. The evidence will undermine “people’s common sense conception of free will and the retributivist thinking that depends on it”.

Pardo & Patterson contend that argument 1 is based on two conceptual mistakes. The first mistake is to equate retributivism with deontology. The second mistake is to assume that retributivism entails the view that retributivist principles provide necessary and sufficient conditions for punishment. Pardo & Patterson see five problems with regard to argument 2. First, the moral intuitions of most people do not answer normative questions regarding the justifiability of criminal punishment. Some agreement with lay intuitions is necessary, but not sufficient, to justify punishment decisions. Second, the neurosciences do not provide evidence against “free will” – neuroscientific studies published up to the present time actually add nothing to the philosophical debate. Third, even in a world of physical determinism, moral desert may be grounded in the control people have over their actions through the exercise of their practical rationality:

deterrence works precisely by affecting the practical rationality of potential offenders, by giving them a reason to refrain from criminal activity that (ideally) outweighs their reasons for criminal activity.

The person exerts “practical rationality” if his mental states – his beliefs and desires – played some causal role in his conduct and he was responsive to reasons for and against his conduct at the time of his actions. His ability to act or not is thus distinct from someone sleepwalking or insane at the time. Fourth, if, as G&C claim, folk psychology is an illusion and cannot justify criminal punishment on retributivist grounds, then why should it be possible to use it to single out criminal from non-criminal behavior, to create justifications or excuses, or to justify punishment on consequentialist grounds? To do so would be inconsistent.

The fifth argument against G&C, focuses on G&C’s conclusions:

the law deals firmly but mercifully with individuals whose behavior is obviously beyond their control. Some day, the law may treat all convicted criminals this way. That is, humanely.

P&P comment on these conclusions – I find this comment of great interest:

more widespread belief that criminals cannot stop and are “determined” to continue their criminal behavior does not appear to be a recipe for more compassionate and humane punishment. [...] A brief history of actual criminal-sentencing practices in the United States over the last thirty years suggests that abandoning retributivist rationales for punishment in favor of deterrence, incapacitation, and general crime control has given us three-strikes laws, harsh sentences for drug crimes, prosecuting juveniles as adults, strict liability crimes, proposals to abolish the insanity defense, the felony-murder rule, and proposals for the indefinite “civil commitment” of criminals.

On the conceptual and the empirical

Words by PMS Hacker, 2007:

Empirical questions are the province of neuroscience. Conceptual questions are the province of philosophy.

Why is defining the boundaries of the domains of (intellectual) authority of each discipline, of such importance? I hope it is not a question of academic rivalry. A few questions posed by the author (and intended to be rhetorical) seem to confirm my impression:

How can philosophy so confidently judge the clarity and coherence of concepts as deployed by competent scientists?  How can philosophy be in a position to claim that certain assertions made by sophisticated neuroscientists make no sense? 

H. insists that philosophy is an a priori discipline that has no continuity with empirical science (Dennett):

Conceptual questions antecede matters of truth and falsehood… Hence conceptual questions are not amenable to scientific investigation and experimentation or to scientific theorizing. [...] What truth and falsity is to science, sense and nonsense is to philosophy.

H. argues that before we can treat a question as an empirical question, we need a complete clarification of the concepts that the researchers use in their experimental hypothesis. However, I believe empirical research helps conceptual clarification. Furthermore, I believe the boundaries between empirical and conceptual questions are blurred. The activity that H. calls “conceptual clarification” can be constructed from an empirical domain: the use of certain concepts (e.g. terms that refer to mental activities and processes) in a particular context. “Conceptual clarification” can thus be seen as an empirical activity that touches on the domains of semantics, pragmatics and sociology of science.