Law and Neuroscience

W artykule analizowane jest zagadnienie wiarygodności decyzji intuicyjnych w procesie stosowania prawa. Analizy prowadzone są z perspektywy psychologii poznawczej, ze szczególnym uwzględnieniem prac nad intuicją ekspercką. Celem prowadzonych analiz jest odpowiedź na pytanie, czy można mówić o wiarygodnych prawniczych decyzjach intuicyjnych. Zestawione zostają badania amerykańskich realistów prawniczych i psychologów poznawczych w celu ich konfrotancji i ustalenia warunków wpływających na proces podejmowania decyzji i wydawania ocen intuicyjnych. Artykuł kończy się przedstawieniem modelu podejmowania decyzji intuicyjnych w naukach psychologicznych i naukach prawnych. -/- (...) In the paper the issue of credibility of legal intuitive decisions is discussed. Analysis is conducted form a perspective of cognitive psychology, especially with emphasis on works on expertise intuition. The goal of the paper is to answer a question whether can we speak about credible intuitive decision making in legal sciences. We confront research conducted in legal theory and cognitive psychology in order to set conditions relevant for a decision making process. The paper ends with a presentation of a decision making model that can be found both in legal sciences and in cognitive psychology. (shrink)

Culpability lies at the heart of our moral and legal practices of blaming, censuring, and punishing. Put simply, an agent is culpable for an action if the action is wrongful and the agent is responsible for that action. This seemingly straightforward concept remains contested within philosophy and legal theory, however, especially in the relatively new fields of neuroethics and neurolaw. How to understand responsible agency, which agents are potential bearers of culpability in general—and for which actions—and the possible evidentiary relevance (...) of neuroscientific findings to these topics are all subjects of active debate. (shrink)

This article focuses on justified responses to “immoral” behavior and crimes committed by patients undergoing neuromodulation therapies. Such patients could be held morally responsible in the basic desert sense—the one that serves as a justification of severe practices such as backward‐looking moral outrage, condemnation, and legal punishment—as long as they possess certain compatibilist capabilities that have traditionally served as the quintessence of free will, that is, reasons‐responsiveness; attributability; answerability; the abilities to act in accordance with moral reasons, second‐order volitions, or (...) Deep Self. Recently leading compatibilist neuroethicists added the condition of not feeling alienated from desires motivating a person's action. This article argues against such attempts to determine conditions under which patients undergoing neuromodulation should be subject to negative reactive attitudes and legal punishment. Compatibilism should not be used to justify basic desert moral responsibility and legal punishment. Instead, a new way of thinking about the function of moral responsibility attribution is proposed for patients with neuromodulation. Their compatibilist capabilities should serve as important indicators for determining appropriate, forward‐looking courses of action, such as quarantining and restorative treatment, to ensure the public safety and well‐being of the patients. (shrink)

The human mind has been a subject matter of study in psychology, law, science, philosophy and other disciplines. By definition, its potential is power, abilities and capacities including perception, knowledge, sensation, memory, belief, imagination, emotion, mood, appetite, intention, and action (Pardo, Patterson). In terms of role, it creates and shapes societal morality, culture, peace and democracy. Today, a rapidly advancing science–technology–artificial intelligence (AI) landscape is able to reach into the inner realms of the human mind. Technology, particularly neurotechnology enables access (...) to the human mind for research, treatment and other purposes. This enabling feature is now a growing concern. In the field of human rights, this human-science–technology interface is leading to articulation of new human rights to safeguard against modern threats. The wider usage of expressions like neurolaw and mental autonomy reflects on the emerging field of standards to protect the human mind from interference, manipulation and control. Growing literature on the subject sheds light on the human-rights-based approach to the challenge. (shrink)

Our understanding of folk and scientific psychology often informs the law’s conclusions regarding questions about the voluntariness of a defendant’s action. The field of psychology plays a direct role in the law’s conclusions about a defendant’s guilt, innocence, and term of incarceration. However, physical sciences such as neuroscience increasingly deny the intuitions behind psychology. This paper examines contemporary biases against the autonomy of psychology and responds with considerations that cast doubt upon the legitimacy of those biases. The upshot is that (...) if reasonable doubt is established regarding whether psychology’s role in the law should be displaced, then there is room for future work to be done with respect to the truth of psychology’s conclusions about criminal responsibility. (shrink)

Since our moral and legal judgments are focused on our decisions and actions, one would expect information about the neural underpinnings of human decision-making and action-production to have a significant bearing on those judgments. However, despite the wealth of empirical data, and the public attention it has attracted in the past few decades, the results of neuroscientific research have had relatively little influence on legal practice. It is here argued that this is due, at least partly, to the discussion on (...) the relationship of the neurosciences and law mixing up a number of separate issues that have different relevance on our moral and legal judgments. The approach here is hierarchical; more and less feasible ways in which neuroscientific data could inform such judgments are separated from each other. The neurosciences and other physical views on human behavior and decision-making do have the potential to have an impact on our legal reasoning. However, this happens in various different ways, and too often appeal to any neural data is assumed to be automatically relevant to shaping our moral and legal judgments. Our physicalist intuitions easily favor neural-level explanations to mental-level ones. But even if you were to subscribe to some reductionist variant of physicalism, it would not follow that all neural data should be automatically relevant to our moral and legal reasoning. However, the neurosciences can give us indirect evidence for reductive physicalism, which can then lead us to challenge the very idea of free will. Such a development can, ultimately, also have repercussions on law and legal practice. (shrink)

Decisions concerning proof of facts in criminal law must be rational because of what is at stake, but the decision‐making process must also be cognitively feasible because of cognitive limitations, and it must obey the relevant legal–procedural constraints. In this topic three approaches to rational reasoning about evidence in criminal law are compared in light of these demands: arguments, probabilities, and scenarios. This is done in six case studies in which different authors analyze a manslaughter case from different theoretical perspectives, (...) plus four commentaries on these case studies. The aim of this topic is to obtain more insight into how the different approaches can be applied in a legal context. This will advance the discussion on rational reasoning about evidence in law and will contribute more widely to cognitive science on a number of topics, including the value of probabilistic accounts of cognition and the problem of dealing with cognitive biases in reasoning under uncertainty in practical contexts. (shrink)

Rapid technological advancements such as fMRI have led to the rise of neuroscientific discoveries. Coupled with findings from cognitive psychology, they are claiming to have solved the millennia-old puzzle of moral cognition. If true, our societal structures – and with that the criminal law – would be gravely impacted. This thesis concerns itself with four distinct theories stemming from the disciplines above as to what mechanisms constitute moral judgement: the Stage Model by KOHLBERG, the Universal Moral Grammar Theory by MIKHAIL, (...) the Social Intuitionist Model by HAIDT, and the Dual-Process Theory by GREENE – comparing the findings of the latter to the consequentialist and retributivist theories of punishment present in the American Criminal Law Doctrine. Analysing both a direct (link to deontology) and indirect (link to incompatibilism) approach to discrediting retributivism, I come to the conclusion that while science can have an impact on our morals and thus on the law, the current state of neuroscientific findings are not capable of shattering foundational notions of the criminal law. (shrink)

[This download includes the table of contents and chapter 1.] -/- When we praise, blame, punish, or reward people for their actions, we are holding them responsible for what they have done. Common sense tells us that what makes human beings responsible has to do with their minds and, in particular, the relationship between their minds and their actions. Yet the empirical connection is not necessarily obvious. The “guilty mind” is a core concept of criminal law, but if a defendant (...) on trial for murder were found to have serious brain damage, which brain parts or processes would have to be damaged for him to be considered not responsible, or less responsible, for the crime? The authors argue that evidence from neuroscience and the other cognitive sciences can illuminate the nature of responsibility and agency. They go on to offer a novel and comprehensive neuroscientific theory of human responsibility. (shrink)

Thanks to Barton Palmer and John McMillan for these thoughtful commentaries. We found much to agree with and it is striking how so many of the issues relating to decision-making capacity assessment find resonances outside of an English jurisdiction. California and New Zealand are clearly grappling with a very similar set of issues and the commentaries speak to the international nature of these discussions.We will pick up on some main points the commentaries raise.As Palmer notes, DMC law is vulnerable to (...) the criticism that it does not attend to the authenticity of a decision. In ordinary language, this is the idea that someone is deciding while “not their self” or that it is the “illness speaking.” There is a... (shrink)

The use of neuroscientific evidence in criminal trials has been steadily increasing. Despite progress made in recent decades in understanding the mechanisms of psychological and behavioral functioning, neuroscience is still in an early stage of development and its potential for influencing legal decision-making is highly contentious. Scholars disagree about whether or how neuroscientific evidence might impact prescriptions of criminal culpability, particularly in instances in which evidence of an accused’s history of mental illness or brain abnormality is offered to support a (...) plea of not criminally responsible. In the context of these debates, philosophers and legal scholars have identified numerous problems with admitting neuroscientific evidence in legal contexts. To date, however, less has been said about the challenges of evaluating the evidence upon which integrative mechanistic explanations that bring together evidence from different areas of neuroscience are based. As we explain, current criteria for evaluating such evidence to determine its admissibility in legal contexts are inadequate. Appealing to literature in the philosophy of scientific experimentation and theoretical work in the social, cognitive and behavioral sciences, we lay the groundwork for reforming these criteria and identify some of the implications of modifying them. (shrink)

Current technology and surveillance practices make behaviors traceable to persons in unprecedented ways. This causes a loss of anonymity and of many privacy measures relied on in the past. These de facto privacy losses are by many seen as problematic for individual psychology, intimate relations and democratic practices such as free speech and free assembly. I share most of these concerns but propose that an even more fundamental problem might be that our very ability to act as autonomous and purposive (...) agents relies on some degree of privacy, perhaps particularly as we act in public and semi-public spaces. I suggest that basic issues concerning action choices have been left largely unexplored, due to a series of problematic theoretical assumptions at the heart of privacy debates. One such assumption has to do with the influential conceptualization of privacy as pertaining to personal intimate facts belonging to a private sphere as opposed to a public sphere of public facts. As Helen Nissenbaum has pointed out, the notion of privacy in public sounds almost like an oxymoron given this traditional private-public dichotomy. I discuss her important attempt to defend privacy in public through her concept of ‘contextual integrity.’ Context is crucial, but Nissenbaum’s descriptive notion of existing norms seems to fall short of a solution. I here agree with Joel Reidenberg’s recent worries regarding any approach that relies on ‘reasonable expectations’ . The problem is that in many current contexts we have no such expectations. Our contexts have already lost their integrity, so to speak. By way of a functional and more biologically inspired account, I analyze the relational and contextual dynamics of both privacy needs and harms. Through an understanding of action choice as situated and options and capabilities as relational, a more consequence-oriented notion of privacy begins to appear. I suggest that privacy needs, harms and protections are relational. Privacy might have less to do with seclusion and absolute transactional control than hitherto thought. It might instead hinge on capacities to limit the social consequences of our actions through knowing and shaping our perceptible agency and social contexts of action. To act with intent we generally need the ability to conceal during exposure. If this analysis is correct then relational privacy is an important condition for autonomic purposive and responsible agency—particularly in public space. Overall, this chapter offers a first stab at a reconceptualization of our privacy needs as relational to contexts of action. In terms of ‘rights to privacy’ this means that we should expand our view from the regulation and protection of the information of individuals to questions of the kind of contexts we are creating. I am here particularly interested in what I call ‘unbounded contexts’, i.e. cases of context collapses, hidden audiences and even unknowable future agents. (shrink)

Stephen Morse’s illuminating scholarship on law and neuroscience relies on a “folk psychological” account of human behavior in order to defend the law’s foundations for ascribing legal responsibility. The heart of Morse’s account is the notion of “mental state causation,” in which mental states cause behavior. Morse argues that causation of this sort is necessary to support legal responsibility. We challenge this claim. First, we discuss problems with the conception of mental causation on which Morse appears to rely. Second, we (...) present an alternative account to explain the link between mental states, reasons, and actions. We argue that the alternative account avoids the conceptual problems that arise for Morse’s conception of mental causation and that it also undergirds ascriptions of legal responsibility. If the alternative succeeds, then Morse’s conception of “mental state causation” is not necessary to support legal responsibility. (shrink)

Wszalek offers a detailed examination of the challenges involved in assisting people with language and communication impairments in the comprehension of legal language and concepts (LLC). If we settle for a minimum threshold of LLC comprehension, we are likely to observe that some people will not meet this threshold due to personal choices, such as not having practiced reading sufficiently or having avoided intellectually stimulating social interactions.

For many employees, ‘work’ is no longer something performed while sitting at a computer in an office. Employees in a growing number of industries are expected to carry mobile devices and be available for work-related interactions even when beyond the workplace and outside of normal business hours. In this article it is argued that a future step will increasingly be to move work-related information and communication technology (ICT) inside the human body through the use of neuroprosthetics, to create employees who (...) are always ‘online’ and connected to their workplace’s digital ecosystems. At present, neural implants are used primarily to restore abilities lost through injury or illness, however their use for augmentative purposes is expected to grow, resulting in populations of human beings who possess technologically altered capacities for perception, memory, imagination, and the manipulation of physical environments and virtual cyberspace. Such workers may exchange thoughts and share knowledge within posthuman cybernetic networks that are inaccessible to unaugmented human beings. Scholars note that despite their potential benefits, such neuroprosthetic devices may create numerous problems for their users, including a sense of alienation, the threat of computer viruses and hacking, financial burdens, and legal questions surrounding ownership of intellectual property produced while using such implants. Moreover, different populations of human beings may eventually come to occupy irreconcilable digital ecosystems as some persons embrace neuroprosthetic technology, others feel coerced into augmenting their brains to compete within the economy, others might reject such technology, and still others will simply be unable to afford it. In this text we propose a model for analyzing how particular neuroprosthetic devices will either facilitate human beings’ participation in new forms of socioeconomic interaction and digital workplace ecosystems – or undermine their mental and physical health, privacy, autonomy, and authenticity. We then show how such a model can be used to create device ontologies and typologies that help us classify and understand different kinds of advanced neuroprosthetic devices according to the impact that they will have on individual human beings. (shrink)

This groundbreaking volume of original essays presents fresh avenues of inquiry at the intersection of philosophy and psychiatry. Contributors draw from a variety of fields, including evolutionary psychiatry, phenomenology, biopsychosocial models, psychoanalysis, neuroscience, neuroethics, behavioral economics, and virtue theory. Philosophy and Psychiatry’s unique structure consists of two parts: in the first, philosophers write five lead essays with replies from psychiatrists. In the second part, this arrangement is reversed. The result is an interdisciplinary exchange that allows for direct discourse, and a (...) volume at the forefront of defining an emerging discipline. Philosophy and Psychiatry will be of interest to professionals in philosophy and psychiatry, as well as mental health researchers and clinicians. (shrink)

Testimony about the future dangerousness of a person has become a central staple of many judicial processes. In settings such as bail, sentencing, and parole decisions, in rulings about the civil confinement of the mentally ill, and in custody decisions in a context of domestic violence, the assessment of a person’s propensity towards physical or sexual violence is regarded as a deciding factor. These assessments can be based on two forms of expert testimony: actuarial or clinical. The purpose of this (...) paper is to examine the scientific and epistemological basis of both methods of prediction or risk assessment. My analysis will reveal that this kind of expert testimony is scientifically baseless. The problems I will discuss will generate a dilemma for factfinders: on the one hand, given the weak predictive abilities of the branches of science involved, they should not admit expert clinical or actuarial testimony as evidence; on the other hand, there is a very strong tradition and a vast jurisprudence that supports the continued use of this kind of expert testimony. It is a clear case of the not so uncommon conflict between science and legal tradition. (shrink)

Promotion of pro-social attitudes and moral behaviour is a crucial and challenging task for social orders. As traditional ways such as moral education have some, but apparently and unfortunately only limited effect, some authors have suggested employing biomedical means such as pharmaceuticals or electrical stimulation of the brain to alter individual psychologies in a more direct way — moral bioenhancement. One of the salient questions in the nascent ethical debate concerns the impact of such interventions on human freedom. Advocates argue (...) that moral bioenhancements do not pose a serious threat to freedom. This contention, however, is based on an overly narrow, if not impoverished, sense of freedom, which comprises only freedom of action and freedom of will. Mind-altering interventions primarily affect another sense of freedom: freedom of mind, a concept that has not received much attention although it should rank among the most important legal and political freedoms. The article introduces three senses of mental freedom potentially infringed upon by moral bioenhancement and places it in a broader perspective. Ignorance of mental freedom has far-ranging consequences for the shape of the political and legal order at large. As many advocates are apparently not aware of the freedoms they seek to undermine, their calls for moral enhancement programmes are dangerously premature. (shrink)

This issue of Criminal Law and Philosophy contains three papers on a topic of increasing importance within the field of "neurolaw"-namely, the implications for criminal law of direct brain intervention based mind altering techniques. To locate these papers' topic within a broader context, I begin with an overview of some prominent topics in the field of neurolaw, where possible providing some references to relevant literature. The specific questions asked by the three authors, as well as their answers and central claims, (...) are then sketched out, and I end with a brief comment to explain why this particular topic can be expected to gain more prominence in coming years. (shrink)

The Normative Structure of Responsibility deals with responsibility in legal, moral, and linguistic contexts. The book builds on conceptual analysis and data from everyday language, ethics, and the law in order to defend the thesis that responsibility is fundamentally normative, that is, it cannot be reduced to purely descriptive factors. The book is divided in three parts: the first part draws a conceptual map of various responsibility concepts, conceptions and conditions and their interaction with different kinds of rules; the second (...) part engages with arguments in favour of a descriptive understanding of responsibility based on ethics, neuroscience, and metaphysics and argues against it; the third part investigates the language of responsibility and its use in formal and informal contexts. (shrink)

Recent work in the behavioral sciences asserts that we are subject to a variety of cognitive biases. For example, we mourn losses more than we prize equivalently sized gains; we are more inclined to believe something if it matches our previous beliefs; and we even relate more warmly or coldly to others depending on whether the coffee cup we are holding is warm or cold. Drawing on this work, case law and legal scholarship have asserted that we have reason to (...) select legal norms, or revise existing norms, so as to eliminate the influence of these and other cognitive biases. -/- In this Article, I critically evaluate whether and when this reaction is warranted. I begin by contrasting predominantly descriptive definitions of bias, on which bias is merely deviation from a predictive model, with prescriptive definition of bias, on which biased conduct is conduct that actors ought not do. I then similarly contrast the behavioral-scientific concepts of statistical significance and effect size with the concept of significance required to justify legal conclusions. -/- With this apparatus in place, I go on to consider a variety of examples where legal commentators and decisionmakers have worried about the effects of cognitive bias on law. I argue that many of these cognitive biases (for example, our aversion to losses), while reflecting deviations from behavioral scientists’ models of human behavior, are not normatively objectionable and so give us no reason to revise our legal norms to eliminate their effect. Others (e.g., the effect of judges’ hunger on their decisionmaking), however, constitute biases under both descriptive and prescriptive definitions and therefore give us good reason to revise our legal norms. -/- I conclude by contrasting my conclusion — that evaluation of cognitive biases’ legal significance must explicitly evaluate the normative arguments for and against the model of decisionmaking in question on a case-by-case basis — with the arguments of influential scientists and legal commentators like Daniel Kahneman and John Mikhail, who treat cognitive heuristics and biases as more broadly desirable or objectionable. (shrink)

Animals as Non-personal Carriers of Legal Rights -/- The current body of knowledge about the subjectivity (cognition and value‑laden experience) of some non-human vertebrates makes the juristic dichotomy between commodities and persons untenable. While the great apes may (with some limitations) be treated as persons, most vertebrates are non-personal agents that lack the awareness of their own agency, which does not necessarily diminish the intrinsic value of their lives. Unfortunately, the ongoing efforts to raise the status and thus improve the (...) treatment of all sentient animals are hindered by the lack of realistic conceptual framework for translating the current knowledge of their subjectivity and ensuing individual interests into politics and legislation. Referring to Western philosophers of law (H. Kelsen, A. Ross, N. MacCormick, L. Petrażycki) we therefore propose to grant vertebrates (and possibly some other animals if their subjectivity is recognized by science) legal rights that are appropriate for non-personal subjects even if the scope of such rights has to be very limited in comparison to the rights of human beings. (shrink)

W artykule analizowane są normatywne kryteria dopuszczalności dowodów naukowych w polskim systemie prawnym, ze szczególnym uwzględnieniem dowodów neuronaukowych. W pierwszej kolejności zostaną przedstawione metody neuroobrazowania mózgu ze wskazaniem rodzaju spraw, w których zostały one wykorzystane. W drugiej kolejności omówione zostaną kryteria dopuszczalności dowodów naukowych w polskim i amerykańskim systemie prawnym. Następnie zidentyfikowanych zostanie szereg zagrożeń, których źródłem może być niezrozumienie natury i niewłaściwe posługiwanie się dowodami neuronaukowymi. Ostatnia część pracy zawiera szereg sugestii o charakterze normatywnym i pozanormatywnym, mających na celu (...) zmianę prawa dowodowego w celu wypracowania mechanizmów pozwalających na rzetelną ocenę dowodów neuronaukowych. -/- The paper discusses the problem of admissibility of scientific, and especially neuroscientific, evidence in Polish legal system. In the first part of the paper, methods of neuroimaging and its uses in legal proceedings are discussed. Then, we focus on the criteria of admissibility of scientific evidence in Polish and American legal systems. In the next part, we try to identify threats of misuse of neuroimaging evidence in the courtrooms. The last part contains a set of suggestions how to change Polish legal system in order to prepare it for neuroscientific evidence. (shrink)

Neuroscience has been proposed for use in the legal system for purposes of mind reading, assessment of responsibility, and prediction of misconduct. Each of these uses has both promises and perils, and each raises issues regarding the admissibility of neuroscientific evidence.

In the field of ?neurolaw?, reformists claim that recent scientific discoveries from the mind sciences have serious ramifications for how legal responsibility should be adjudicated, but conservatives deny that this is so. In contrast, I criticise both of these polar opposite positions by arguing that although scientific findings can have often-weighty normative significance, they lack the normative authority with which reformists often imbue them. After explaining why conservatives and reformists are both wrong, I then offer my own moderate suggestions about (...) what views we have reason to endorse. My moderate position reflects the familiar capacitarian idea which underlies much lay, legal, and philosophical thinking about responsibility ? namely, that responsibility tracks mental capacity. (shrink)

In this open peer commentary, we categorize the possible “neuroscience in national security” definitions of misuse of science and identify which, if any, are uniquely presented by advances in neuroscience. To define misuse, we first define what we would consider appropriate use: the application of reasonably safe and effective technology, based on valid and reliable scientific research, to serve a legitimate end. This definition presents distinct opportunities for assessing misuse: misuse is the application of invalid or unreliable science, or is (...) the use of reliable scientific methods to serve illegitimate ends. Ultimately, we conclude that while national security is often a politicized issue, assessing the state of scientific progress should not be. (shrink)

Various authors debate the question of whether neuroscience is relevant to criminal responsibility. However, a plethora of different techniques and technologies, each with their own abilities and drawbacks, lurks beneath the label “neuroscience”; and in criminal law responsibility is not a single, unitary and generic concept, but it is rather a syndrome of at least six different concepts. Consequently, there are at least six different responsibility questions that the criminal law asks—at least one for each responsibility concept—and, I will suggest, (...) a multitude of ways in which the techniques and technologies that comprise neuroscience might help us to address those diverse questions. In a way, on my account neuroscience is relevant to criminal responsibility in many ways, but I hesitate to state my position like this because doing so obscures two points which I would rather highlight: one, neither neuroscience nor criminal responsibility are as unified as that; and two, the criminal law asks many different responsibility questions and not just one generic question. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Bad, the Ugly, and the Need for a Position by PsychiatryLloyd A. Wells (bio)Keywordsvice, psychiatric education, psychiatry-law interface, medicalizationSadler’s paper is thought provoking and will resonate with many psychiatrists who deal with the interface of vice and psychiatric syndromes. This interface and the dilemmas it poses are perhaps most discussed by residents, who are dealing with the issue for the first time and who often debate what is (...) “psychiatric” about these cases. Many residents have their own informal systems of classifying vice, often with a divide between the criminal population and those perceived as avoiding work and responsibility. These unofficial classifications are usually judgmental and often pejorative, but the residents rarely get much help from faculty in this area. Indeed, many of the faculty have equally judgmental and pejorative views, which are neither systematized nor subject to systematic analysis.By clarifying the importance of the issue of the vice–mental disorder relationship (VMDR) to psychiatry, Sadler may move this topic to one that receives Socratic discourse in our training programs and serious consideration in the training of psychiatrists rather than an idiosyncratic lumping of these patients into the broad category of “patients I don’t like.”Sadler asks for comments in several categories: historical intractability, goals of psychiatry, taxonomy, implications for the criminal justice system, implications for the law, and ethical/political implications.Issues of historical intractability are long standing. In A Tour of the Whole Island of Great Britain, written in the early eighteenth century, Daniel Defoe (1724–1727) describes many asylums, often with the comment, “as it is a madhouse, so is it also a house of correction.” Some of the great public hospitals of the seventeenth and eighteenth centuries were built at least as much to get antisocial and homeless people off the streets as to provide care for the mentally ill. The moral treatment of France and Great Britain, which added much to the practice of psychiatry, clearly had punitive “treatments” for patients with vice-laden behaviors, and this was very explicit in the American moral model of treatment of the late nineteenth century with its obsessive need to prevent patients from masturbating. In the nineteenth and early twentieth centuries, there was great debate about the inclusion of Pritchard’s “moral insanity”—now sanitized into “personality disorders”—into the psychiatric domain, and Kraepelin referred to this group as “enemies of society.”Sadler next asks us to consider the goals of psychiatry in regard to “a proper VMDR.” He wonders [End Page 43] whether a strict medicalization account can be defended. I think it is clear from a large literature and from clinical experience that it cannot be defended —now. But it may become defensible in this century, which will pose enormous challenges to psychiatry, lawmakers, and the courts (vide infra). A strict moralization model is defended by many in society, including some psychiatrists, but has severe limitations and seems illogical. It is hard to make a case (though juries have done so) that, for example, a very delusional young woman with postpartum psychosis who murders her children because of the belief that far worse things than death will happen to them imminently if they live, fits the moralization approach. The Dahmer case is especially instructive. Although there was enormous “vice” (and perhaps “evil”), it is hard to make a case that a sane man would make temples out of the body parts of victims and would attempt to commune with the dead through them.He wonders whether a “mixed” version of medicalization/moralization can be developed and defended. I would argue for both a mixed approach and a “shared” approach. A middle adolescent with bipolar disorder burned his house to the ground. (Fortunately, he and family members were injured but not killed.) He was wildly manic at the time and set the fire because he wanted to prove that he was immortal and totally impervious to flames. He was delusional, extraordinarily impulsive, and completely without judgment, and it would be extraordinarily difficult to exclude the medical frame in any consideration of the vice involved. The vice, indeed, may be more involved in his decision while euthymic to stop taking... (shrink)