The Limited Compatibilism of Epiphenomenalism with Responsibility

The second response to the epiphenomenal challenge is to deny that epiphenomenalism has any implications that are skeptical of responsibility. Such a compatibilist response is seemingly ruled out by adopting the classical compatibilist response to the challenge of hard determinism. Whether this is in fact so is explored in this chapter, the thesis being that in a certain range of cases we are responsible for effects that we do not cause so long as those effects are on one horn of an epiphenomenal fork the existence of which we know and the other horn of which we can control. Because such responsibility across the horns of an epiphenomenal fork can involve control of the past, and because a general control of the past to the extent that we can control the future is implausible, some care is taken to limit the scope of what in the past we can control by our present decisions. These limits are cast in terms of there being a strong necessitation of a past event by a present decision which necessitation is known to the actor as he acts to make it have been the case that such past event occurred.

The Challenging Data of Neuroscience and the Challenges Mounted from That Data

The suppositions about the psychology of moral agency are challenged by neuroscience in four ways: first, by denying that the choices of persons can be uncaused (and thus “free” in this contra-causal sense); second, by denying that the choices of persons actually cause the actions that are chosen, such actions rather being epiphenomenal with such actions, co-effects of some common cause in the brain; third, by denying that the minds of persons are anything but the brute, dumb firing of two valued switches in the brains of such persons, a mere mechanism or machine; fourth, by denying that persons have the kind of privileged access to their own mental states that gives persons the knowledge needed for control and for responsibility. Two responses to these four challenges are previewed, a response denying the truth of these claims and a response denying the relevance of these claims to responsibility. The attempt to sidestep these challenges known as “cheap compatibilism” is also reviewed and rejected.

The Royal Road to the Criminal Law’s Concept of the Psychology of Persons

One of the most famous excuses from responsibility and defenses to criminal liability is insanity. The doctrines of insanity are the royal road to grasping the nature of personhood presupposed by both morality and the criminal law. This is because the insane are thought to lack that which makes us accountable agents. The doctrines defining legal insanity are thus examined at some length, probing such doctrines for their suppositions about what psychological characteristics sane persons must possess to be responsible agents. Considerable stripping away from standard doctrines of insanity is needed to reveal the defense’s presuppositions about personhood and moral agency. For those standard doctrines treat insanity as if it were an ordinary excuse like mistake or coercion, just one incidentally limited to those offenders who are mentally ill. Whereas in fact insanity excuses independently of both the cognitive excuses of mistake and of the volitional excuses of coercion, and it does so because of the defense’s central focus on mental illness. Because of their mental illness those who are legally insane lack something more basic than the cognitive and volitional defects on which the defenses of mistake and coercion are based; those who are legally insane lack the moral agency possessed by sane adult persons. This is why this sui generis excuse of insanity affords such a unique opportunity to probe law and morality’s suppositions of what persons must be like to be responsible agents.

Introduction

This introductory chapter lays out the dramatic challenge neuroscience is taken to issue to our sense of who and what we are and to our responsibility for our choices and for our actions. Neuroscience is seen as the newest of a series of challenges issued to the criminal law, retributivist punishment, moral blameworthiness, and the common-sense psychology all of these presuppose. Backed by a better science of the human brain, neuroscience reissues the challenges to responsibility that have long been issued by academic psychology, be that psychology introspectionist, Freudian, behaviorist, genetic, or whatever.

Rescuing the Volitional Excuses from Compatibilism (the “Overshoot” Problem for Compatibilism)

Chapter 9 explores the nature of the volitional excuses and whether such nature can be reconciled with the classical compatibilism explored in the last chapter. The volitional excuses are those excuses whereby the accused does not claim ignorance or mistake about the wrong-making characteristics of his actions; rather, the claim of excuse is founded on the difficulties some actors have in either choosing or doing what they know is the right thing to do. Classical compatibilism has the danger of eliminating all volitional excuses; the chapter aims to reformulate the counterfactual analysis of ability at the heart of classical compatibilism in ways that do not eliminate volitional excuses. The chapter also assays the extent to which contemporary neuroscience might aid in formulating and/or verifying the presence of, the volitional excuses.

Nothing But a Pack of Neurons

Seemingly separate from the concerns raised by either hard determinism or epiphenomenalism are the concerns raised by physicalistic reductionism. The separate worries for responsibility spawned by physicalism stem from the neuroscience claim that at bottom we are just mechanisms, physical machines. The claim seems to belittle our most cherished attributes like our creativity, our capacity to love, our responsible agency. To be “nothing but a pack of neurons” seemingly is to be less than the image we had of ourselves. The chapter examines the meaning of reductionism in the sciences generally, and of mind to brain more specifically. A variety of metaphysical views (of the relation of mind to brain) are examined, each of which raises this distinctive challenge of physicalism despite the differences between them. A view often called “reductionist” but which in fact is not—eliminative materialism—is also distinguished. The chapter then sifts the evidence thus far produced by neuroscience that some form of mind-brain reductionism is true, and assays the extent to which such reductionism actually challenges responsibility.

Further Questions about the Basic Distinction between Intention and Belief

In this chapter, subtleties in the distinguishing of intention from belief are explored. These subtleties are different depending on whether one is talking about intention or belief with respect to a consequence of one’s action, or whether one is talking about intention or belief with respect to the circumstances in which one acted. With respect to consequences, the problem of “closeness” is explored, which is the problem of whether when one intends some state of affairs, such as hitting a glass with a rock, and that hitting is “close” to the glass breaking, one necessarily intends the breaking of the glass. With regard to circumstances, the problem is whether one only intends the circumstances that motivate one to act or whether in addition one intends all those circumstances that figure in the actor’s own description of what it is that he is doing.

The General Structure of the Criminal Law in Terms of Ascriptive Moral Principles

The criminal law is seen as having a “general part,” a part that contains the doctrines that determine liability to criminal sanctions for all crimes. These are depicted as the basic conditions for criminal liability no matter what the crime charged. The general legal doctrines are shown to be reflections of a similarly general part of deontic morality, the morality of our obligations to act one way rather than another. This general aspect of deontic morality is often called “ascriptive morality,” so labeled because it describes the conditions of fair fault ascription no matter what the immorality involved. Ascriptive morality is a part of every society’s moral code, and it forms a universal backbone for the criminal codes all over the world. Such ascriptive morality determines when someone is responsible in terms of their acts, the consequences those acts cause, their intentions and beliefs, and their reasons for acting.

Addiction, Responsibility, and the Potential Contributions of Neuroscience

This concluding chapter seeks to preview the help that neuroscience can offer to moralists and criminal lawyers once its revolutionary ambitions are put aside. The topic of addiction is a well-developed topic in contemporary neuroscience, and that literature is probed for the contributions it has made, and might yet make, to a question that has long bedeviled moralists and lawmakers, namely, does addiction excuse because it compels? The chapter explores the arguments over how addiction should be defined; surveys the competing explanations offered up in psychology for continued drug use by addicts; and evaluates whether any of those explanations, if true, would be excusing. The chapter then surveys how the insights of neuroscience could change, deepen, and enrich these definitional, explanatory, and evaluative tasks.

The Libertarian, Fictionalist, and Compatibilist Responses to Hard Determinism

This chapter surveys the various responses to hard determinism, all of which seek to salvage responsibility in the face of the thought that all of our actions and choices are caused by factors over which we have no control. Those responses are grouped into three large categories: libertarianisms, fictionalisms, and compatibilisms. Libertarians believe that we do possess contra-causal free will, at least some of the time. Fictionalists believe that we must fictionalize responsibility so that we can construct it so as to be compatible with the determination of human choice by factors themselves unchosen. Compatibilists believe that there is no contradiction between free and responsible action, on the one hand, and determination of human choice, on the other. Various subcategories of each of these groupings are explored, and a case is made to subscribe to one of the forms of compatibilism, classical compatibilism. Ten amendments are offered to classical compatibilism aimed at eliminating the many problems that have been raised for classical compatibilism these past sixty years.