The title of this post is an edited version of a headline that appeared this week at ABC news. The story behind it is that a Californian politician named Mary was caught shoplifting, and her lawyer says that her impaired judgment may have been caused by a benign brain tumour.
We can accept that in principle, a brain tumour could undermine Mary’s moral responsibility and excuse her actions, because we now know that tumours can press on parts of the brain and prevent them functioning properly – causing all kinds of unusual thoughts and behaviours. And Mary could hardly be held responsible for her having a brain tumour. She didn’t choose to have it; it just happened to her.
But if we leave the word “tumour” out of the headline, as I did, we are apt to be surprised by the result. Suppose that Mary never had a brain tumour. Then the thought that Mary’s brain on its own might have absolved her of responsibility by causing the action strikes us as exceedingly odd. Why?
First, perhaps this sounds odd because we are tempted to identify Mary with her brain. I don’t think that’s very plausible, though – most of us are not even slightly tempted to think that Mary is less than two kilos in weight and enclosed within a bony skull.
As a second guess, perhaps we think Mary must be responsible because we think that Mary is in control of what her brain does. But how is this possible? It seems more accurate to say that Mary’s brain is in control of what Mary does. We might be in the grip of a dualistic picture of the mind according to which Mary herself is an immaterial mind or soul that has causal influence over her brain. But this theory is not scientifically plausible, and it is hard to imagine what this immaterial substance could be, and how such immaterial substances could fit into and interact with the naturalistic universe. Many of us are convinced that dualism is false, yet it still seems obvious to us that Mary cannot be excused merely by showing that her brain caused the action.
Perhaps we instead reflect that all our actions are caused by our brains, and that we know that people are responsible for at least some of their actions, so it follows that the fact that a person’s brain caused her action cannot absolve her of responsibility.
But now consider what the brain is: it is, essentially, a biological machine; 100 billion nerve cells living in a chemical soup and firing electrical impulses at each other. And in years to come, as neuroscience improves and expands our knowledge of the brain, we may reach the stage where your lawyer will be able to explain any particular criminal misjudgement as a result of this-or-that chemical overdose or deficit, this-or-that badly routed synapse, the growth of this-or-that cell, or – perhaps – this-or-that quantum random occurrence.
How will we respond to these future lawyers? What’s the difference between the idea that this-or-that bit of your brain (albeit perhaps a microscopic bit) made you irrational, and the idea that a large tumour made you irrational? A tumour is not some alien invader: it is a proliferation of your own cells. Is it, then, size that matters here? Surely not!
It seems inconsistent to accept the tumour excuse but not the others. The odds are high that neuroscience will one day force us to radically revise the way we think about responsibility and the criminal law. Perhaps we will no longer accept that tumours in our brains can provide us with excuses – or perhaps we will cease to believe in personal responsibility altogether.
I have nothing useful to add, but I thought I should point out that I misread the title as "Lawmaker Steals Leather Pants: Brian May responsible".
No doubt that misreading was produced by an over-strong synaptic connection forged in your brain between your parietal leather trousers region and your oribitofrontal Brian May region 🙂
Now, did you choose to watch those old Queen videos or did watching them just happen to you?
I wish I could thumbs up Simon's reply…
Hah, excellent.
Visste hon om att hon gjorde något olagligt ? Gjorde hon det ändå ? Då skall hon straffas.
I vart fall, gör hon sig olämplig som politiker, genom att föra ovanstående resonemang. "Politician named Mary was caught shoplifting, and her lawyer says [Mary has]… impaired judgment"…
I think it depends on a number of factors regarding the specific brain structure. For instance if your brain makes you more inclined to X but you can also resist X because of how your brain is built, then you have more responsibility.
Alternately I guess Sam Harris just says no free will.
I guess the way I look at it is that moral assessment is in part a form of causal explanation, and that causal explanation doesn't look at *every* antecedent condition, but those which strike us as relevant foreground conditions. If someone made a beautiful billiards shot and I asked "how did you manage that?" it would be irrelevant to say "the table was perfectly flat." They generally are. But if someone who usually makes beautiful shots *didn't* make a shot, it *would* be relevant to say "there was a small bump on the table that deflected the path of the ball." The tumor in the exonerated criminal defendant is the bump. It would be silly to say that refusing to attribute the good shot to the flatness of the table is mystical, or involves rejecting materialism. And it would be obtuse to say that the cause of an act of lawful behavior was a medically normal brain EVEN IF the behavior wouldn't have occurred if the medically normal brain hadn't been there. And it would be silly to exonerate a criminal *because* they had a medically normal brain.
<i>I don’t think that’s very plausible, though – most of us are not even slightly tempted to think that Mary is less than two kilos in weight and enclosed within a bony skull.</i>
Mary is obviously <I>both</I> the brain and the bony skull, and the flesh and blood apparatus that constitutes both. Just as my car is the wheels <I>and</i> the engine, and when the engine breaks, I have no difficulty thinking to myself that I need to take <I>the entire car</I> into the shop.
The reason that Mary is less culpable for her brain-tumor-related shoplifting than her bad-character-related shoplifting is that "culpability" is a classification system for how we make people stop shoplifiting (or committing other crimes.) People who shoplift because they have a brain tumor are sent to hospitals to have the tumor removed, and then we can be confident that they will go and shoplift no more. But our society believes that the "cure" for regular criminality is punishment in the form of prison, with the idea of inducing brain changes that will result in a lower propensity towards committing crimes in the future. That second cure is less effective than the first and as a result we have lower confidence in it, but it doesn't change the fact that we <I>do</I> currently respond to both types of criminality in arguably the same way – we attempt to induce brain changes that will result in a lower propensity for criminality in the future.
Perhaps, in the future, we'll not only have the means to detect these tiny brain states that may result in "irrational" crimes (of course, as an aside, many crimes are completely rational) but the means to correct them, as well. Would anyone truly object in that time if instead of uselessly and expensively jailing criminals, we just reached in and made their brains less likely to cause them to commit crimes in the first place? I don't see why they would. And perhaps we'd see that, even in that world, some people committed crimes because it <I>was</I> rational that they do so – that the gains outweighed the risks of getting caught – and those will be the criminals that, in fact, we do continue to jail because nothing is actually wrong with their brains.
Justice is a noble goal, but the law is also concerned with order. Assigning moral responsibility is not always as important as enforcing social norms. Just because the law has carved out some very narrow exculpatory categories does not mean it will broaden them any time soon.
If we hold someone responsible for a crime and subsequently punish them, it is partly because (a) we think the punishment will act as some sort of deterrent to future crimes (either for that individual or for others in society who may be tempted). It may also be because (b) we think the criminal is a risk to society and must be kept apart. It may also be because (c) we think the individual can be rehabilitated. Finally, we may think that (d) the victim of the crime will take some comfort in seeing the criminal punished.
Punishing someone who commits a crime because of a brain tumour will not achieve (a), (c) or (d), assuming everyone is aware of the fact that the tumour played a big role. (b) can be achieved without unnecessary punishment (in this case, with brain surgery).
What's the difference between a tumour and another part of the brain? Well, normally we are able to learn, both from others (hence deterrence) and from our own experience (hence rehabilitation). If someone is neurologically unable to learn why not to commit serious crimes, then of course they should be treated just like Mary's lawyer says she should have been. In such a case, we may still decide (b) is a good enough reason to lock them up if repeated offending is likely, though therapy should first be sought to improve their cognitive ability, and something like house arrest may be much more appropriate than prison.
Is the key point here a question of identity? Simon says we are not remotely tempted to identify Mary with her brain, but who/what exactly *do* we understand by the term "Mary". A living organism?
Pursuing this idea further, one reason why it could be consistent to accept the lawyer's argument in the case of a tumour, but not otherwise, is if we regard the brain itself, but not the tumour, as an intrinsic part of Mary. In other words, once one of our cells goes awry and turns cancerous, it is reasonable no longer to regard it as part of us.
I think this line of argumentation is important because Matt's analysis of the rationales for punishment misses out society's very reasonable and constructive *yearning for justice*.
Another factor that may be relevant here is that because the tumour is a recent and unexpected development, Mary may have been taken off guard by the urge to shoplift, and might therefore not have had time or good reason to build up significant defences against it.
Excuse my boring lack of flippancy, but anyone familar with brain-tumour sufferers knows that the disease involves – if slow-growing – a steady corruption of the long-standing pattern of personal behaviour we call their 'character' or 'identity'.
Family and loyal friends must 'excuse' not only theft and lies, but distressing public nudity, sexual exposure, tirades, personal abuse and inexplicable new obsessions. What would be the point of detaining or fining such a distressingly humiliated wreck of a former self? Or perhaps you would have liked Mary to do community service?
Affliction by brain tumour is a special case, not to be confused with more comlex shoplifting offences presented as 'out of character' but unlinked to pathological brain damage.
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