NOV 21

22: NOV 21: Unit 5: Proposals and Applications

Greene, Joshua and Jonathan Cohen. "For the Law, neuroscience changes nothing and everything" (20) (Scott/Hendrick)

1. Neuroscience findings do not pose a challenge to the legal system, but will provoke a conflict with ordinary intuitions about blame and this will delegitimate
2. Our sense of agency is created in the brain. (Strong version of this. Dennett might object.)
3. The "problem" of free will and determinism is not solvable because it is generated by two different cognitive structures in your brain.
4. Neuroscience will lead us to show universal compassion in handling criminal behavior. (!)

"Mens rea" - a guilty mind.
Existing legal principles make no assumptions about the neural level, so can accommodate new science. But, neuroscience does reveal "something fishy" about our conceptions of human action and responsibility.
Argument preview: 1776: Current legal doctrine is grounded in a "metaphysically overambitious" libertarian view of free will, which is threatened by new neuroscience and determinism. Discrepancy will show up in the public's mind as they watch the CJ system operate.
The authors will "diagnose" the free will issue as a discrepancy bt folk psychology and folk physics. The version of free will that folk psych gives us is an illusion. [But that doesn't exclude a non-illusionary account of FW.

Background of skepticism about utilitarian punishment: could be Draconian, could punish the innocent. Critics respond that these scenarios would not satisfy utilitarian intuitions.
Retributivism does a better job of capturing our intuitions about punishment. Desert. "Internal wickedness"

reviews arguments of hard determinism, libertarianism, and compatibilism.
Libertarians wind up believing things there is no evidence for. Urges rejection of the "panicky metaphysics" of libertarianism.
Compatibilists "normalize" free will. Roughly rational, non-coerced action.
Retributivists must deny hard determinism, so, in absence of evidence for LibFW, they (and the retributive CJ system) are compatibilists. (Hence, the law may accommodate other compatibilist frames.)

Stephen Morse (from podcast, I think). General idea of a rational person. "The law doesn't care if people have "free will" in any deep metaphysical sense..."1778
Greene and Cohen's argument: Morse is right about neuroscience and the law, but if neuroscience changes people's intuitions about blame and punishment, then we have a problem of legitimacy of the law. “In our opinion, the fundamental psycholegal error is . . . A reflection of the gap between wha the law cares about and what people care about.”

The law is interested in "diminished rationality" but people are asking something deeper, "What it really him?" vs. SES, genes, highly contingent circumstances. We have dualist and libertarian folk psychology, not just religious folks.
Cites "humuncular thinking" in CJ expert Pincus. Other experts saying "some of the diffs"...? Third example, Sternberg and Scott, write as if we needed neurological evidence rather than behavioral evidence.
The public's fascination with neuroscience evidence is evidence that they are looking for something that the law isn't looking for. "What it him?"
"The Boys from Brazil" problem. Mr. Puppet. The law just wants to know if Mr. P was rational at the time. But we "folk" feel that something is wrong about holding him MR. But if det is true, we are all puppets. People are led by their dualist/nonmaterial intuitions to reject determinism. But maybe neuroscience will reschool those intuitions.

From "black box" to "transparent bottleneck". Predicts that we will have very granular real time observation of decision making processes.
After enough new neuroscience, it will be pointless to ask, "Was it him or ....?" In a sense, everyone is a "victim" of a "neuronal circumstance" (A phrase I might enjoy promoting.)

Endorses Wegner's "Illusion of Conscious Will" (2002), which brought together research on how we deceive ourselves into believing we are in control. (Still, relevant, more so than Libet's particular experiment.)
Additional considerations: Research suggesting that minds would naturally develop distinct module for animate an inanimate objects. Hidder and Simmel's research on attribution of agency to shapes. Andrea Heberlein's work on amygdala damaged subjects. Didn't see agency. "Intentional Stance / Theory of Mind" (distinguish). Other research on people who do not see agency- autism spectrum folks. Different ontologies.
"Attributive Free Will" is the unavoidable tendency to attribute free will to others.
bot. 1782: we are in a bind. Two standpoints. "The problem of free will and determinism will never find an intuitively satisfying solution because it arises out of a conflict between two distinct cognitive subsystems that speak different cognitive 'languages' and that my ultimately be incapable of negotiation." 1783 col. 1.

FW an illusion, but not MR.
They do allow that consequentialism will generate a kind of account of FW, but this is "hard determinism".
Interesting: Thinks we will be led to the French maxim, "to know all is to forgive all". universal compassion. (not so sure, myself).
Objections to Consequentialist punishment.

Could justify overpunishing.
Could justify underpunishing. [It is true that we will notice recidivism more if policy changes.]

1. Doesn't that fact that you can raise your hand show that you have FW? No. Wegner.
2. Isn't attribution of FW and MR practically inevitable? Cites good early evidence (Henrich would be an update in the same tradition of Cultural evolutionary accounts) that we are adapted to FW and MR to meet challenges of social life. Response: Analogous to the diff between Euclidean and Curved space. May only need to overcome Euclidean intuitions when you launch a rocket into space. Likewise (big concession) we may not overcome our FWMR intuitions in everyday life, but in CJ contexts we must.
3. Why do anything if hard determinism is true? Same answer as earlier. Try it. You're not built that way.