This essay responds to Hirstein, Sifferd and Fagan’s book, Responsible Brains, which claims that executive function is the guiding mechanism that supports both responsible agency and the necessity for some excuses. In contrast, I suggest that executive function is not the universal acid and the neuroscience at present contributes almost nothing to the necessary psychological level of explanation and analysis. To the extent neuroscience can be useful, it is virtually entirely dependent on well-validated psychology to correlate with the neuroscientific variables (...) under investigation. The essay considers what executive function is and what the neuroscience adds to our understanding of it. Then it addresses moral and legal responsibility generally, and specific doctrines. Executive function is seldom found to be the most perspicuous approach to any of the general or specific moral and legal questions. (shrink)

This article addresses the question of the relevance of brain imaging to legal criteria that are behavioral, that is, that require evaluation of a defendant's actions or mental states. It begins with the legal standard for the admissibility of scientific and technical evidence. Then it considers the relevance of imaging to behavioral legal criteria. The problem is translating mechanistic neuroscience data into the law's folk psychological standards. It uses examples from the criminal law, but the analysis generalizes to behavioral criteria (...) in the civil law. The central question is, “How, precisely, does the proffered scan or data based on scanning answer the specific legal question it supposedly helps answer?” I conclude that, at present, brain imaging has little relevance to behavioral legal criteria. The final section takes note of a rampant disorder, brain overclaim syndrome, and offers a remedy, cognitive jurotherapy. (shrink)

How to respond justly to the dangers persistent violent offenders present is a vexing moral and legal issue. On the one hand, we wish to reduce predation; on the other, we want to treat predators fairly. The central theme of this paper is that it is difficult to achieve both goals without compromising one of them, and that both are being seriously undermined. I begin by explaining the legal theory, doctrine and practice governing dangerous offenders and demonstrate that the law (...) leaves a gap in the ability to confine them. Next I explore the means by which the law has overtly or covertly sought to fill the gap. Many of these measures, especially the new form of civil commitment for sexual predators, dangerously conflate moral and medical categories. I conclude that pure preventive detention is more common than we usually assume, but that this practice violates fundamental assumptions concerning liberty under the American constitutional regime. (shrink)

How to respond justly to the dangers persistent violent offenders present is a vexing moral and legal issue. On the one hand, we wish to reduce predation; on the other, we want to treat predators fairly. The central theme of this paper is that it is difficult to achieve both goals without compromising one of them, and that both are being seriously undermined. I begin by explaining the legal theory, doctrine and practice governing dangerous offenders and demonstrate that the law (...) leaves a gap in the ability to confine them. Next I explore the means by which the law has overtly or covertly sought to fill the gap. Many of these measures, especially the new form of civil commitment for sexual predators, dangerously conflate moral and medical categories. I conclude that pure preventive detention is more common than we usually assume, but that this practice violates fundamental assumptions concerning liberty under the American constitutional regime. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Vice, Disorder, Conduct, and CulpabilityStephen J. Morse (bio)Keywordsvice, conduct, culpability, mental disorderDr. John sadler’s interesting paper raises an important issue. It defines vice as criminal, wrongful or immoral behavior. He claims that the Diagnostic and Statistical Manual of Mental Disorders (DSM) “confounds the concepts of vice and mental illness” and that this confounding has “important implications... for the relationship between crime, criminality, wrongful conduct, and mental illness.” The (...) paper correctly notes that disorders for which vice is the primary criterion tend to be impoverished diagnostically and are probably less valid than non–vice-related disorders. Dr. Sadler wonders if the subjects of his case studies are “involved in sick behavior, immoral behavior, both, neither, or some other metaphysical kind altogether.” This is an excellent question that this comment will seek to clarify. It will also consider the moral and legal implications of the answer.The domain of immoral, wrongful, and criminal behavior is essentially action. Some moral and religious traditions evaluate the content of an agent’s thoughts, desires, and character, but the dominant view is that vice primarily describes action that is wrongful because it violates the rights of others or it is wrong in itself. The rules of morality and law create value, but their essential task is to guide the action of agents who must live together. Dr. Sadler does not explicitly recognize that the diagnostic criteria that are vice are all actions, and not simply abnormal perceptions, desires, thoughts, or moods. His three case studies of conduct disorder, factitious disorder, and paraphilia confirm this point. Even pedophilia, which can be diagnosed simply on the basis of urges or fantasies that cause marked distress or interpersonal difficulty, would not be considered a vice unless the agent acted on these sexual urges. Those individual actions that meet Dr. Sadler’s criteria for vice I will term “vice actions.”Actions, including vice actions, may be evaluated medically and morally. There is no logical or conceptual reason why the same action cannot be both a sign of mental disorder and wrongful and potentially blameworthy. Actions can be just mad, just bad, or mad and bad. Also, the same action may sometimes be a sign of disorder and sometimes not. No general argument suggesting the contrary is provided. Consequently, there is no confound between the concepts of vice and mental disorder unless vice actions fail to satisfy the generic criteria for being a sign of mental disorder. Dr. Sadler seems to implicitly recognize [End Page 47] this when he asks whether vice–mental disorder relationship criteria are impoverished because there is a lack of consensus about “the minimum requirements for an acceptable set of descriptive criteria for a mental disorder category,” or when he asks “where criminal syndromes... fit into a classification of mental disorders.”No consensual, generic definition of mental disorder exists, and deciding whether actions should be signs of mental disorder is particularly fraught because cultural context and values always play a role in the definition of mental disorder. The other potential signs and symptoms of mental disorder are virtually all phenomena that simply happen to people and are not products of agency. Actions are by definition the product of agency, however, and vice actions affect by definition the rights and interests of others. The latter is true whether or not the agent is “vicious.” Even if an agent who has done wrong is excused, the rights of the victim have been violated.Moral, political, and legal evaluation is largely beside the point for non-action signs and symptoms, but it is always on point for vice actions. This is the primary potential source of the confound between vice and disorder. To claim that a vice action is a sign of disorder because it is vice begs the question and is indeed a confound. Even the presence of a biological marker will not save this claim. All human action presumably has biological markers and one cannot say that a marker is of a disorder without first having an independent definition of disorder that the vice action satisfies.Until a robust theory of mental disorder is provided, we cannot determine whether a vice action is... (shrink)

Descartes' Meditations is one of the most thoroughly analyzed of all philosophical texts. Nevertheless, central issues in Descartes' thought remain unresolved, particularly the problem of the Cartesian Circle. Most attempts to deal with that problem have weakened the force of Descartes' own doubts or weakened the goals he was seeking. In this book, Stephen I. Wagner gives Descartes' doubts their strongest force and shows how he overcomes those doubts, establishing with metaphysical certainty the existence of a non-deceiving God and (...) the truth of his clear and distinct perceptions. Wagner's innovative and thorough reading of the text clarifies a wide range of other issues that have been left unclear by previous commentaries, including the nature of the cogito discovery and the relationship between Descartes' proofs of God's existence. His book will be of great interest to scholars and upper-level students of Descartes, early modern philosophy and theology. (shrink)

Descartes' procedure in "Meditation II" must be brought into line with his claim that "we must never ask about the existence of anything until we first understand its essence." And Descartes' "Meditation III" claim that he is aware of his mind's power to cause ideas must be grounded in a prior discovery of this power. Both demands are met by reading "Meditation II" as a progressive clarification of the nature of mind, with the investigation of the wax providing the discovery (...) of the mind's generative power. This process of discovery also provides the meanings of "thinking" and "existing" -- as "causing ideas" and "exercising causal power", respectively. Thus the discovery of the mind's nature also grounds the cogito. I provide a close reading of the wax investigation which supports this view. (shrink)

THIS PAPER PROVIDES A READING OF DESCARTES' COGITO WHICH RESOLVES THE PROBLEMS ENCOUNTERED BY THE OTHER PREVALENT ANALYSES OF HIS THOUGHT. I FIRST INDICATE THE WAYS IN WHICH THE INFERENTIAL AND PERFORMATIVE VIEWS FAIL TO ADEQUATELY EXPLICATE DESCARTES' OWN STATEMENTS REGARDING THE COGITO. I THEN SET OUT MY "GENERATIVE VIEW" AND SHOW THAT IT PROVIDES A FULLY CONSISTENT READING OF THESE SAME STATEMENTS. I CONCLUDE THAT THE GENERATIVE VIEW MORE ADEQUATELY REPRESENTS DESCARTES' INTENTIONS.

This paper spells out the implications, for Descartes's theory of ideas, of my earlier paper, "Descartes's Wax: Discovering the Nature of Mind." I show that my reading of the wax investigation provides a number of clarifications of Descartes's Meditation III discussion of ideas. My reading of Meditation III provides a ground, internal to the Meditations for Descartes's claims about objective reality, the causal laws, material falsity and the idea of God. I show that Descartes's claims and conclusions regarding these issues (...) is strengthened by the perspective I have provided. (shrink)

We present a model for several early stages of the sensorimotor transformations involved in targeted arm movement. In psychophysical experiments, human subjects pointed to the remembered locations of randomly placed targets in three-dimensional space. They made consistent errors in distance, and from these errors stages in the sensorimotor transformation were deduced. When subjects attempted to move the right index finger to a virtual target they consistently undershot the distance of the more distal targets. Other experiments indicated that the error was (...) in the sensorimotor transformation rather than in the perception of distance. The error was most consistent when evaluated using a spherical coordinate system based at the right shoulder, indicating that the neural representation of target parameters is transformed from a retinocentric representation to a shoulder-centered representation. According to the model, the error in distance results from the neural implementation of a linear approximation in the algorithm to transform shoulder-centered target parameters into a set of arm orientations appropriate for placing the finger on the target. The transformation to final arm orientations places visually derived information into a frame of reference where it can readily be combined with kinesthetically derived information about initial arm orientations. The combination of these representations of initial and final arm orientations could give rise to the representation of movement direction recorded in the motor cortex by Georgopoulos and his colleagues. Later stages, such as the transformation from kinematic to dynamic parameters, or to levels of muscle activation, are beyond the scope of the present model. (shrink)

This chapter addresses the potential contributions of neuroscience to legal policy in general and criminal justice in particular. The central question is whether neuroscience is relevant to legal policy. The chapter begins with speculation about the source of claims for the positive influence of neuroscience. It then turns to the scientific status of behavioral neuroscience. The next section considers the two radical challenges to current policies that neuroscience allegedly poses: determinism and the death of agency. The penultimate section addresses the (...) question of the specific relevance of neuroscience to legal doctrine, practice, and institutions. The final section points to some areas warranting modest optimism. The general conclusion, however, is that neuroscience is scarcely useful at present but may become more relevant as the science progresses. (shrink)

This chapter addresses the potential contributions of neuroscience to criminal justice decision-making and policy, with special emphasis on criminal responsibility. The central question is whether neuroscience is relevant to criminal justice. The general conclusion is that it is scarcely useful at present but may become more relevant as the science progresses. After explaining the meaning of criminal responsibility in use, the chapter speculates about the source of claims for the positive influence of neuroscience. The scientific status of behavioral neuroscience and (...) two radical challenges to responsibility neuroscience allegedly raises, determinism and the death of agency, are discussed next. Then, the specific relevance of neuroscience to criminal law and the use of neuroscience in criminal cases in the United States and abroad are addressed. The penultimate section points to some areas warranting modest optimism for the use of neuroscience in criminal justice. A brief conclusion follows. (shrink)

This article considers whether psychopaths should be held criminally responsible. After describing the positive law of criminal responsibility in general and as it applies to psychopaths, it suggests that psychopaths lack moral rationality and that severe psychopaths should be excused from crimes that violate the moral rights of others. Alternative forms of social control for dangerous psychopaths, such as involuntary civil commitment, are considered, and the potential legal implications of future scientific understanding of psychopathy are addressed.

This article demonstrates that there is no free will problem in forensic psychiatry by showing that free will or its lack is not a criterion for any legal doctrine and it is not an underlying general foundation for legal responsibility doctrines and practices. There is a genuine metaphysical free will problem, but the article explains why it is not relevant to forensic practice. Forensic practitioners are urged to avoid all usage of free will in their forensic thinking and work product (...) because it is irrelevant and spawns confusion. (shrink)

This book presents a comprehensive overview of what the criminal law would look like if organised around the principle that those who deserve punishment should receive punishment commensurate with, but no greater than, that which they deserve. Larry Alexander and Kimberly Kessler Ferzan argue that desert is a function of the actor's culpability, and that culpability is a function of the risks of harm to protected interests that the actor believes he is imposing and his reasons for acting in the (...) face of those risks. The authors deny that resultant harms, as well as unperceived risks, affect the actor's desert. They thus reject punishment for inadvertent negligence as well as for intentions or preparatory acts that are not risky. Alexander and Ferzan discuss the reasons for imposing risks that negate or mitigate culpability, the individuation of crimes, and omissions. (shrink)

Professor Gideon Yaffe’s recent, intricately argued book, The Age of Culpability: Children and the Nature of Criminal Responsibility, argues against the nearly uniform position in both law and scholarship that the criminal justice system should give juveniles a break because on average they have different capacities relevant to responsibility than adults. Professor Yaffe instead argues that kid should be given a break because juveniles have little say about the criminal law, primarily because they do not have a vote. For Professor (...) Yaffe, age has political rather than behavioral significance. The book has many excellent general analyses about responsibility, but all are in aid of the central thesis about juveniles, which is the central focus of this essay review. After addressing a few preliminary issues, the essay discusses Professor Yaffe’s negative argument against the validity of the behavioral difference rationale for giving juveniles a break. If the negative case fails, which the essay argues it does, then the only issue is whether the book’s alternative is desirable. Again, the essay argues that it is not, and concludes by offering three positive arguments for the traditional rationale: coherence and simplicity; a benignly definitional argument that survives the negative argument and supports giving juveniles a break in the exceedingly unlikely event that the empirical assumptions of the traditional rationale are proven incorrect; and a proposal for individualization of the culpability assessments of juveniles so that the criminal justice system blames and punishes them proportionately to their culpability. (shrink)

ABSTRACT The article begins by contrasting medical and moral views of addiction and how such views influence responsibility and policy analysis. It suggests that since addiction always involves action and action can always be morally evaluated, we must independently decide whether addicts do not meet responsibility criteria rather than begging the question and deciding by the label of ?disease? or ?moral weakness?. It then turns to the criteria for criminal responsibility and shows that the criteria for criminal responsibility, like the (...) criteria for addiction, are all folk psychological. Therefore, any scientific information about addiction must be ?translated? into the law's folk psychological criteria. Distractions about responsibility are then quickly canvassed. Then it addresses the direct relation between addiction and criminal responsibility. It argues that most addicts retain sufficient rational and control capacities at the relevant times to be held responsible, especially for crimes that are not part of the definition of addiction itself. It suggests that there is good reason to excuse or mitigate addicts for the crimes of purchase and possession for personal use. It concludes by briefly considering what contemporary science can contribute to our understanding of addiction and agency. (shrink)

This essay review addresses the central responsibility thesis of David Brink's "Fair. Opportunity and Responsibility" and then considers two applications of the central. Thesis: legal insanity and diminished capacity.

Despite considerable interest in viral evolution, at least among virologists, viruses are rarely considered from the same evolutionary vantage point as other organisms. Early work of necessity emphasized phenotype and phenotypic variation (and therefore arguably was more oriented towards the broader biological and ecological perspectives). More recent work (essentially since the development of molecular evolution in the 1960's but beginning earlier) has concentrated on genotypic variation, with less clarity about the significance of such variations. Other aspects of evolutionary theory, especially (...) considerations of natural selection and of evolutionary constraints, have not widely been applied to viruses, and an evolutionary framework for virology has long been lacking. This becomes apparent in considering 'emerging' viruses, which have often been treated on an ad hoc basis. It was often felt that, because previously unrecognized viruses are involved, mechanisms of viral emergence must mirror the unpredictability of mutations in the viral genome. However, most examples of viral emergence are independent of mutation, at least initially, and are often pre-existing viruses in changed circumstances ('viral traffic'). This conclusion also readily follows from ordinary Darwinian premises, which would require that, like other living species, 'new' organisms are descended only from existing species. In this respect, from a Darwinian perspective, viruses would appear to resemble other organisms. (shrink)

This chapter addresses the many topics concerning the mind that Michael Moore has written about for many decades, including the metaphysics of mind and action, the act requirement in criminal law, the basis for the excuse of legal insanity, a volitional or control excuse, and the relation of the new neuroscience to law. Rather than primarily responding to Moore’s influential work, the chapter largely considers issues that are complementary to Moore’s work. The chapter does question whether metaphysical issues must be (...) resolved to engage in constructive legal analysis, but concludes generally that Moore is right about most topics he covers. There is room for constructive disagreement, however, and the chapter notes the areas in which this is fruitful. (shrink)

This article suggests that investigational deep brain stimulation (DBS) for mental disorders raises few new bioethical issues. Although the scientific basis of the procedure may be both complex and largely unknown, addressing informed consent in such situations is a familiar problem. After reviewing the legal and moral background for investigating DBS and the scientific difficulties DBS faces as a potential treatment for mental disorders, the article focuses on informed consent and makes two primary suggestions. The study of DBS may proceed, (...) but “hyper-disclosure” of the complexities should be required for competent subjects or proper surrogates if the candidate is not competent, and the most rigorous standard for competence should be employed. Throughout, neuromodesty and caution are urged. (shrink)