The New Identity Crisis and the Law

Tom Wolfe, cultural knockabout, discovered the neuroscientific revolution and its apparently dire implications for our self-image some years ago, and wrote it up with typical flair in "Sorry, But Your Soul Just Died." His recent conversation with neuroscientist Michael Gazzaniga at Seed gets into the same territory, what Seed calls the new identity crisis: if there's no ghost in the machine (and it seems there isn't), what the bleep are we, anyway?! Worries about genetic and environmental determinism are now joined by neural angst in suggesting that you're basically a biological choice-making machine. But Gazzaniga says this way of being you might be OK:

But who is "you"? "You" is this person with this brain that has been interacting with this environment since you were born, learning about the good and the bad, the things that work and don't work. You've been making decisions all the way along, and now you have a new one and you want to be free to make it. So psychologically, the Interpreter is telling you you're making this decision. But the trick is understanding that your brain is basing the decision on past experience, on all the stuff it has learned. You want a reliable machine to make the actual act occur. You want to be responding rationally to any challenge that you get in the world, because you want that experience to be evaluated. That's all going on in your brain second by second, moment to moment. And as a result, you make a decision about it. And phenomenologically, when the decision finally comes out, you say, "Oh, that's me!"

Choices arrived at neuro-deterministically are what you rationally would want to make. You want to be a good anticipator of probabilities and contingencies based on past experience, and inserting something random, undetermined, or (a logical impossibility) ultimately self-caused, would simply add noise to the mostly reliable calculations your brain makes "second by second, moment to moment." So it's a good thing you don't have the free will to do something other than what your brain decides, even though it might feel like you do. And indeed, never did a choice-making machine feel so spontaneous!

Gazzaniga, director of the MacArthur Law and Neuroscience Project, also properly points up a difficulty for criminal justice on this picture of the self:

So these ideas — what I call the ooze of neuroscience — are going out everywhere, and people are willing to accept that: "My brain did it. Officer, it wasn't me." These defenses are popping up all over the judicial system. But if we adopt that, then it's hard to see why we have a retributive response to a wrongdoing. It would seem to me to be morally wrong to blame someone for something that was going to happen anyway because of forces beyond their control. So people get into this loop, and they get very concerned about the nature of our retributive response.

And well they should. Even though we can't and shouldn't let criminals go free just because they're fully caused to commit crimes, we should nevertheless rethink retribution, the idea that criminals deserve to suffer whether or not it produces any positive personal or social outcome. The idea of reforming our punishment practices, stemming from the sea-change in our self-concept driven by neuroscience, has been taken up by a few philosophers, psychologists and others, including Joshua Greene (Harvard), Jonathan Cohen (Princeton), Derk Pereboom (Cornell), and of course the Center For Naturalism (we've proposed a Council on Crime and Causality to make the case for such reform).

Curiously, and it isn't clear why, Gazzaniga is self-admittedly very hard-nosed about punishment, even to the point of wanting to toss the insanity defense, see here. That a neuroscientist, of all people, thinks we should retributively punish those with serious mental disorders seems indefensible. But being very smart in one domain is no bar to being dead wrong in another. Relatedly, it's worth noting that the legal coordinator for the Law and Neuroscience Project, UPenn professor Stephen Morse, is also a retributivist, although not as hard-nosed as Gazzaniga (see here). Those at the Project who think neuroscience has progressive implications for the law, such as UPenn's Martha Farah, might have some tough sledding ahead.