What do you mean “capacity”?!

Last week I was in Philadelphia at the Law and Neuroscience: State of the Art conference organised by Dennis Patterson from Rutgers and EUI. The conference lineup was fantastic – it included Debbie Denno, Adam Kolber, Michael Moore, John Mikhail, Stephen Morse, Adina Roskies, Michael Pardo & Dennis Patterson, Fred Schauer, and yours truly – during these two intensive days everything functioned like clockwork, and apart from learning a lot I also got some fantastic feedback on my own paper “Four challenges for the conceptual foundations of neurolaw“.

After briefly describing how the conceptual foundation of neurolaw has over the last decade shifted from Hard Determinism to Compatibilism, my paper then points out four concerns. First, unless the notion of “capacity” is understood in the right way, then it will still remain tempting to keep reverting to the view that whenever someone does something wrong it was precisely because they lacked the requisite mental capacity to act rightly. Second, what from one angle may be described as a “mental incapacity” and have an exculpatory or mitigatory effect, can often equally be redescribed as a “character flaw” with an opposite inculpatory or aggravating effect, and although capacitarianism of necessity favours the “mental incapacity” description, from a normative standpoint it is not clear why the capacitarian description is preferable to the charactarian description. Third, although medical notions like “mental disorder” and “disease of the mind” remain firmly entrenched within legal responsibility adjudication and practices, it is not clear whether they should continue to play a role within the dominant capacitarian framework or precisely what role they should be allowed to play. And fourth, although neurolaw scholars often proclaim that particular empirical findings about people’s mental (in)capacities have specific legal upshots – for instance, that it is unjust to punish particular categories of defendants (e.g. 17 year olds) in given ways (e.g. execution) – what is still missing is a theory to explain the relationship between facts and norms in anything other than straight-forward “he couldn’t and therefore it is not the case that he ought to have” cases.

The fourth point turned out to be rather unoriginal by the time I finished the first draft of this paper, and so I didn’t spend any time talking about it in the presentation. And although points two and three attracted some comments, it was the first point – i.e. that we need a better notion of “capacity” to justify reactive attitudes like blame and resentment and related practices like retributive punishment, than the currently-popular claim that (roughly) P has a capacity to X if in sufficiently many close possible worlds (or in some possible world) P X’s even if in this world P does not X – that attracted the most attention and criticism, with Michael Moore playfully diagnosing me as a closet incompatibilist. =) Having himself offered an analysis of “can” and “capacity” only the previous day, he opened his comments by proclaiming that by making that first point I had revealed myself to be an incompatibilist, and that on account of this my “compatibilist card” had now been revoked. Naturally I denied this allegation – I am a compatibilist, and my aim was never to claim that determinism can’t accommodate any notion of capacity, but only that we still haven’t come up with the right notion of capacity (indeed, I have a sole-authored paper in the pipeline, and another on which I am a co-author, in which other conceptual analyses of “capacity” are offered) – however over the coming weeks I’ll still be giving Michael’s paper a closer read, as well as following up some references that he “prescribed” for me as a treatment for my chronic incompatibilism =) (e.g. the SEP entry on “Abilities” by John Maier from the University of Sydney).

On the personal side, this was only the second time I had ever been to the States – in May this year I visited New York City while attending the Moral Brain conference, and then I spent a fortnight at the University of Minnesota following the History of Responsibility conference organised by Antony Duff – and I must confess to loving Philadelphia. The place has just the right mix of glitziness and grittyness, the people were down to earth and friendly, the restaurants were great, I spent half a day in awe walking around the Barnes Foundation‘s gallery of post-impressionist paintings, and if the opportunity to return there ever comes up I’ll throw myself at it.

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