Maoz and Yaffe on Neurolaw

Uri Maoz’s and Gideon Yaffe’s paper “Neuroscience and Criminal Responsibility” (2015) is one of the best introductory articles on the topic of criminal responsibility for neurolaw students that I’ve encountered. In what follows, I first discuss two things I really like about this article, and below that I make some minor critical comments.

The first thing I really like about this article is how, very early on in the piece, Maoz and Yaffe lay their compatibilist cards face up on the table. As I’ve argued elsewhere (Vincent 2013), if you’re going to do neurolaw, I honestly don’t see the point of being anything other than a compatibilist. It seems to me that if you’re a hard determinist then you’re probably going to approach the whole topic with radical reform aspirations – for instance, you’re not really going to take the law’s commitment to responsibility seriously – in which case you’re not talking about doing neurolaw but rather undoing neurolaw. On the other hand, if you’re a libertarian, then I’m frankly not sure why you’d even care about what neuroscience might have to say on the topic of the brain, since responsibility and free will would not, after all on your account, be constrained by the physical laws that govern the brain’s operation. For such reasons, I find Maoz’s and Yaffe’s up-front commitment to compatibilism very attractive. Having recounted the main details of the case of Michael, a 40 year old school teacher who developed paedophilic tendencies due to a brain tumor, originally reported in Jeffrey Burns’s and Russell Swerdlow’s (2003) paper, Maoz and Yaffe write:

A first and essential step toward appreciating the bearing of neuroscientific results on criminal responsibility is recognizing the sense in which Michael’s criminal behavior… is no different from anyone else’s: it has its source in the brain and the environment. There are two natural ways to respond: give up on criminal responsibility altogether, or accept that a person can be fully responsible for his bad behavior even though it is explicable, in principle, given enough information about his brain and his environment. Those drawn to the former view may be ready to stop reading this chapter now. If nobody is criminally responsible for his behavior, then neither neuroscience or any other science can help us to understand criminally responsible behavior better; such behavior does not exist. However those drawn to the latter view can seek ways in which neuroscience can, or does, inform our understanding of the features of human beings in virtue of which they are criminally responsible for their behavior. This is the approach taken here. (1025)

I’m with Maoz and Yaffe on this one. Unless, from the very outset, we set aside conceptual room for the possibility that people may be responsible and blameworthy for their criminal behaviour (or perhaps just for their antisocial actions), then for similar reasons to what I sketched above (in commenting on why I don’t think it makes sense to be a hard determinist if you’re going to do neurolaw properly) there’s simply no point in even referring to yourself as a neurolaw scholar. I would also add that there’s not even a point in calling yourself a compatibilist unless your approach explicitly sets aside the right amount and kind of conceptual room for making such judgments. Often when I read the neurolaw literature, what strikes me is how un-compatibilist some scholars’ compatibilist approaches can be. For instance, it’s not uncommon for scholars who take themselves to be compatibilists to express something like the following view: that if only we had sufficiently well-advanced brain science, sufficiently powerful brain scanners, and a time machine to travel back in time and scan the brain of someone who was about to commit a criminal offence, then with all that at our disposal we would finally be in a position to ascertain whether at the moment of the crime the person concerned was indeed capacitous (and thus fully responsible) or sub-capacitous (and thus less than fully responsible). But as I have argued elsewhere (Vincent 2015), and as I will argue at an upcoming talk in Maastricht, this approach, despite ostensibly being compatibility and talking of mental capacities, is not compatibilist at all. It is not compatibilist because at any moment in time, regardless of what psychology a person possesses – whether it’s the psychology of a capacitous person, of a sub-capacitous person, or an incapacitous person – there is still only one way in which that person can actually behave, and that’s the way that they actually do/did behave. And any talk of capacities at moments in time – that is, during moments of perception, judgment, choice, decision, or action – surreptitiously re-introduces the very same troubling modal language and modal concepts that trouble incompatibilists (whether of the hard determinist or the libertarian variety).

Now, Maoz and Yaffe do not go into precisely how they would go about ascertaining people’s mental capacities, nor of how they conceive of the relevance of mental capacities to criminal responsibility, so it’s difficult for me to say whether they also have incompatibilist plumage beneath their compatibilist feathers. However, what I really like about what they’ve done in this paper is that they very clearly spell out that we may as well pack up our bags and go, unless we set aside enough conceptual room of the right kind for the possibility that people can, at least in principle, be responsible for their wrongdoings, which I take to mean that the mere fact that someone has done wrong will not by itself warrant a search for the circuit/wiring in the brain that caused them to act wrongly on that occasion. As Greene and Cohen (2004: 1778-1789) pointed out 14 years ago now, many self-proclaimed compatibilist scholars indeed reveal a clearly libertarian (i.e. incompatibilist) set of intuitions by giving undue emphasis to the search for the brain basis of people’s mental capacities, as if somehow this informative would be more determinative of a criminal defendant’s responsibility than what we already know from observing their behaviour vis à vis their rationality (or control). So this is one big reason why I like Maoz’s and Yaffe’s paper — their commitment to a compatibilist approach to doing neurolaw.

The second reason why I like Maoz’s and Yaffe’s paper so much is because of the way they not only systematically lay out and explain the three core legal concepts that criminal responsibility hinges upon – i.e. actus reus, mens rea, and affirmative defenses – but that they offer one of the most dense and yet clearest discussions of how research in the allied mind sciences along with progress in brain scanning techniques and technologies may shed light on legal inquiries that involve these three concepts. This is helpful for two reasons. One, students who are exposed to neurolaw for the first time encounter a steep learning curve where they must quickly become acquainted with the conceptual currency of at least three disciplines: law, neuroscience, and philosophy. Maoz’s and Yaffe’s simple and clear discussion of these three concepts is very helpful at quickly conveying what actus reus, mens rea, and affirmative defenses are, and how they are related to criminal responsibility. The second reason why this is helpful is because the examples they offer clearly demonstrate how neuroscience might (and how it may not) be relevant in the context of trying to shed light on each of these three things. Because they cite so many good examples, though, I’m not going to recite any of them here, because I fear that by reciting only a few of them this would run the risk of conveying the wrong message, like that their examples don’t quite hit the nail on the head because they miss out on this or that or some other point. They don’t, and so instead of reciting their examples, let me just encourage you to read their article yourself. It’s only 9 pages long, and that includes footnotes and references (which is another good reason to set this as a required reading for students enrolled in your neurolaw course).

Do I have any misgivings about Maoz’s and Yaffe’s paper? Sure, here are three critical notes.

At one point in the paper, Maoz and Yaffe write “Sanity and insanity are conditions of the brain. And criminal behavior, sane or insane, has its source in the brain. However, if the neural sources of insanity can be identified, that would be of potential use to the legal system” (1026). My first worry is that I’m actually not sure that sanity and insanity really are best conceived of as brain conditions. For one thing, I’m disinclined to adopt the position which identifies mental disorders with brain disorders. I know that there are good reasons to think of a condition like ADHD as a brain disorder, however at the same time thinking of ADHD this way fails to give adequate recognition to the fact that the disorderliness of ADHD has much to do with how people with this condition adapt to living in a society that requires a very specific sort of ability to focus their attention. For the same reason why I’m not comfortable with calling ADHD a brain disorder, I’m also not comfortable with calling Asperger’s syndrome, or a range of other conditions, “brain disorders”. The brains of people with these conditions are not disordered simpliciter. Rather, they are different in a way that is maladaptive to the social environments in which they live. But that, to me at least, doesn’t sound like a good reason to call the way their brains are wired up and how they function “disordered”. A bullet hole in the brain, a brain tumour, a stroke, or Alzheimer’s disease — now, those are clearly brain disorders. Are mental disorders brain disorders, though? I’m not comfortable with saying that, but that is what it appears Maoz and Yaffe are saying. So that’s my first critical comment.

My second concern is that from what I gather, “sane” and “insane” are legal not medical terms. Sort of like “crazy” is not a medical term. Although the words “sane” and “insane” can clearly be used in colloquial ways and even in medical contexts, the law’s precise definition of these terms has many departures from either medical or colloquial usage. Hence, my second critical comment is that “sane” and “insane” are concepts from the criminal law, not medical concepts that describe brain conditions. And although there will undoubtedly be overlap between legal, medical, and colloquial usage of these terms, that doesn’t warrant Maoz’s and Yaffe’s identification of “sanity and insanity” with “brain conditions”. (If I were a Foucauldian scholar, I’d probably make this paragraph a lot longer, but alas I’m not, so I’ll end this paragraph here.)

Finally, my third concern is that I would have dearly loved to see a discussion of the role that mental disorders need to play in diminutions of mental capacity in order for those diminished mental capacities to be capable of reducing the degree of responsibility. After all, in order for mental incapacities to provide a basis for an affirmative defense like the insanity defense, they must either be produced by, or perhaps instantiate, mental disorders. If my mental incapacity is brought about in the wrong way – for instance, by my having drunk too much prosecco at lunch and becoming intoxicated – or if my mental incapacity is deemed to be a personality trait (rather than a mental incapacity), then in neither case will it furnish me with an affirmative defense. On various occasions throughout this article, Maoz and Yaffe make comments of the following sort: “Potentially, however, work of this kind [work on the neuroscience of control] could provide the first steps in helping us to determine how particular psychological disorders result in sufficient absence of ‘substantial capacity to conform one’s conduct to law’ for insanity. Much work, however, would need to be done before such steps could be taken” (1032, internal citation omitted). Although I agree that much of this sort of empirical work is needed, my worry is that there’s also a need for much conceptual work of the sort that I’m gesturing at here. Consequently, without having spelled out the aetiological (or, perhaps, constitutional) role that mental disorders must play in the genesis (or constitution) of mental incapacities, Maoz and Yaffe have not yet provided a clear enough framework for students of neurolaw to properly appreciate the role that the notion of mental disorder plays within criminal responsibility adjudications.

Still, even with these three critical comments in place, I’m very much a fan of this article. If you’re teaching a course on neurolaw, unless your students are already well-acquainted with the concepts and terminology of law, neuroscience, psychology, and philosophy, then I would highly recommend that you include this gem in your syllabus among the set readings under the topic of “criminal responsibility”.

REFERENCES:

Burns JM & Swerdlow RH (2003) “Right Orbitogrontal Tumor With Pedophilia Symptom and Constructional Apraxia Sign”, Archives of Neurology, 60: 437-40.

Greene J & Cohen JD (2004) “For the law, neuroscience changes nothing and everything”, Philosophical Transactions of the Royal Society of London, 359: 1775-85.

Maoz U & Yaffe G (2015) “Cognitive Neuroscience and Criminal Responsibility”, in Michael Gazzaniga (ed) The Cognitive Neurosciences, MIT Press, pp 1025-1033.

Vincent NA (2013) “A Compatibilist Theory of Legal Responsibility”, Criminal Law and Philosophy. DOI: 10.1007/s11572-013-9249-2

Vincent, NA (2013) “Blame, Desert and Compatibilist Capacity: a diachronic account of moderateness in regards to reasons-responsiveness”, Philosophical Explorations, 6: 178-94. DOI: 10.1080/13869795.2013.787443