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RESPONSIBLE CHOICES, DESERT-BASED LEGAL INSTITUTIONS, AND THE CHALLENGES OF CONTEMPORARY NEUROSCIENCE*

  • Michael S. Moore (a1)
Abstract
Abstract

Neuroscience is commonly thought to challenge the basic way we think of ourselves in ordinary thought, morality, and the law. This paper: (1) describes the legal institutions challenged in this way by neuroscience, including in that description both the political philosophy such institutions enshrine and the common sense psychology they presuppose; (2) describes the three kinds of data produced by contemporary neuroscience that is thought to challenge these commonsense views of ourselves in morals and law; and (3) distinguishes four major and several minor kinds of challenges that that data can reasonably be interpreted to present. The major challenges are: first, the challenge of reductionism, that we are merely machines; second, the challenge of determinism, that we are caused to choose and act as we do by brain states that we do not control; third, the challenge of epiphenomenalism, that our choices do not cause our actions because our brains are the real cause of those actions; and fourth, the challenge of fallibilism, that we do not have direct access to those of our mental states that do cause our actions, nor are we infallible in such knowledge as we do have of them.

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1 Those guilty of this sin (and no doubt deserving of serious punishment) include Sapolsky Robert, “The Frontal Cortex and the Criminal Justice SystemPhilosophical Transactions of the Royal Society of London vol. 359 (2004): 1787–96; Greene Josh and Cohen Jonathan, “For the Law, Neuroscience Changes Nothing and Everything,” Philosophical Transactions of the Royal Society of London vol. 359 (2004): 1775–85; Dawkins Richard, “Let's All Stop Beating Basil's Car,” posted 2006 at http://www.edge.org/q2006/q06_9.html; Banks William, “Does Consciousness Cause Misbehavior?” in Pockett S., Banks W., and Gallagher S., eds., Does Consciousness Cause Behavior? (Cambridge, MA: MIT Press, 2006), 253; Clark Thomas W., “Fear of Mechanism: A Compatibilist Critique of ‘The Volitional Brain,’Journal for Consciousness Studies vol. 6 (1999): 279–93.

2 Moore Michael, Placing Blame: A General Theory of the Criminal Law (Oxford: Clarendon Press, 1997), 8792.

3 Kant Immanuel, The Metaphysical Elements of Justice, Ladd J., trans. (Indianapolis: Bobbs-Merrill, 1965), 102.

4 Moore, Placing Blame, 45–60, 191–193, 403–404.

5 Explored at length by me in Moore Michael, Law and Psychiatry: Rethinking the Relationship (Cambridge: Cambridge University Press, 1984), 67–84, 100–112.

6 Pinker Steven, “The Fear of Determinism,” in Baer J., Kaufman J., and Baumeister R., eds., Are We Free? Psychology and Free Will (Oxford: Oxford University Press, 2008), 317.

7 On “indirect,” or “two-step,” utilitarianisms generally, see Alexander Larry, “Pursuing the Good—Indirectly,” Ethics vol. 95 (1985), 315–32. Pinker's is a trait or motive kind of indirect utilitarianism. So-called “trait” or “motive” utilitarianism (according to which we should adopt those traits that in the long run will maximize utility), is usually associated with Brandt Richard, “Towards a Credible Form of Utilitarianism,” in Brody B., ed., Moral Rules and Particular Circumstances (Englewood Cliffs, NJ.: Prentice-Hall, 1970).

8 As many besides Pinker have noticed. See, e.g., Greene and Cohen, “Neuroscience Changes Nothing”; see also Dennett Daniel, Elbow Room: The Varieties of Free Will Worth Wanting (Cambridge, MA: MIT Press, 1984), where in the last chapter Dennett unwittingly adds cheap compatibilism to the more genuine form of compatibilism expressed in the earlier chapters of his well-known compatibilist tract.

9 Clemenceau's celebrated simile was that military justice stands to justice as military music stands to music.

10 Moore, Placing Blame, 155–58, 160–63.

11 As Jack Smart, a trenchant but clear-headed act-utilitarian once put it, following a practice when it does not maximize utility to do so, is “blind rule-worship.” J. J .C. Smart, “Utilitarianism: For,” in Smart J. J. C. and Williams Bernard, Utilitarianism: For and Against (Cambridge: Cambridge University Press, 1973). David Lyons has classically shown that indirect utilitarianisms like Pinker's collapse either into such blind rule-worship or into a direct (or “act”) utilitarianism. Lyons David, Forms and Limits of Utilitarianism (Oxford: Oxford University Press, 1965).

12 Pinker, “Fear of Determinism,” 318.

14 Moore, Placing Blame, 101.

15 Mixed schemes are discussed ibid., 92–94.

16 Hart H. L. A., Punishment and Responsibility (Oxford: Oxford University Press, 1968).

17 I chart the place of moral desert in all of these schemes in Moore Michael, “Four Reflections on Law and Morality,” William and Mary Law Review vol. 48 (2007), 1523–69, at 1553–68.

18 Locke John, The Second Treatise of Government 2531 (Gough J. W., ed., Barnes and Noble, 1966) (originally published 1690).

19 Nozick Robert, Anarchy, State, and Utopia (New York: Oxford University Press, 1974).

20 Chisholm Roderickreintroduced the term (which is conventionally capitalized to avoid confusing it with the less technical idea of intentional action) into modern discussions. See hisPerceiving: A Philosophical Study (Ithaca, N.Y.: Cornell University Press, 1957), 120–70. For an update, see Perry John, “Intentionality (II),” in Guttenplan S., ed., Blackwell's Companion to the Philosophy of Mind (Oxford: Blackwell, 1994), 386–94.

21 See, e.g., Cornman James, “Intentionality and Intensionality,” Philosophical Quarterly vol. 12 (1962), 4452; Moore, Placing Blame, 372–84.

22 Brentano Franz, Psychologie vom Empirischen Standpunkt (Leipzig, 1874), a selection translated in Chisholm R., ed., Realism and the Background of Phenomenology (Glencoe, Ill.: Free Press, 1960): “Every mental phenomenon is characterized by what the scholastics of the Middle Ages called Intentional Inexistence of an object …”

23 The basic motive for this “eliminativist-materialism” skepticism (based in philosophy rather than in scientific psychology) lies in the difficulty of individuating mental states with Intentional content in a way that any physical system could realize. See, e.g., Rorty Richard, “The Brain as Hardware, Culture as Software,” Inquiry vol. 47 (2004): 231: “Beliefs cannot be individuated in such a way as to correlate with neural states.” The idea is that propositional content (if that is what it is) takes into account features of the world in such individuation, and such features “can't be in the head.” See generally Greenwood John, ed., The Future of Folk Psychology (Cambridge: Cambridge University Press, 1991).

24 “[I]f commonsense intentional psychology were really to collapse, that would be, beyond comparison, the greatest intellectual catastrophe in the history of our species…” Fodor Jerry, Psychosemantics: The Problem of Meaning in the Philosophy of Mind (Cambridge, MA: MIT Press, 1987), xii.

25 Plato , The Republic, Book IV (Allen R. E., trans., New Haven: Yale University Press, 2006).

26 Whether there are two or three distinct states involved in practical rationality has been the subject of contemporary debate. Compare Davidson Donald, “Intention,” in his Essays on Actions and Events (Oxford: Oxford University Press, 1980), with Bratman Michael, Intention, Plans, and Practical Reason (Cambridge, MA: Harvard University Press, 1987). For reasons explored in Moore Michael, Act and Crime: The Implications of the Philosophy of Action for the Criminal Law (Oxford: Clarendon Press, 1993), chap. 6, I favor Bratman's triad of distinct intentional states to Davidson's two.

27 A good explication of Aristotle's practical syllogisms in light of the contemporary philosophy of action is Nussbaum Martha's dissertation, done under David Cooper's supervision and published asAristotle's De Moto Animalum (Princeton, N.J.: Princeton University Press, 1977). See also Moore, Placing Blame, 604–5.

28 On psychopaths, see Morse Stephen, “Psychopathy and Criminal Responsibility,” Neuroethics 1 (2008), 205–12.

29 Explored briefly by me in Moore, Law and Psychiatry, 108.

30 Moore, Placing Blame, 127–38.

31 David Sachs nicely charted how Freud's theory of defense mechanisms presupposed hidden norms of proportionality of emotional response. Sachs David, “On Freud's Doctrine of the Emotions,” in Wollheim R., ed., Freud: A Collection of Critical Essays (Garden City, N.Y.: Doubleday, 1974).

32 Moore, Law and Psychiatry, 390–91; Moore, Placing Blame, 615–16.

33 Usually termed the “causal theory of action,” a basic tenet of folk psychology. See Moore, Act and Crime; Moore , “Renewed Questions About the Causal Theory of Action,” in Aguilar J. and Buckareff A., eds., Causing Human Action: New Perspectives on the Causal Theory of Action (Cambridge, MA: MIT Press, 2010). Jerry Fodor regards this as basic to the folk psychology: “If it isn't literally true that my wanting is causally responsible for my reaching … then practically everything that I believe about anything is false and it is the end of the world.” Fodor Jerry, A Theory of Content and Other Essays (Cambridge, MA: MIT Press, 1990), 196.

34 Moore, Placing Blame, 610–14.

35 Field G. C., “Is the Conception of the Unconscious of Value in Psychology?,” Mind, 31 (1922): 413–23, at 413–14.

36 James William, The Principles of Psychology (Cambridge, MA: Harvard University Press, 1890), Vol. 2, p. 496.

37 Freud Sigmund, The Ego and the Id, in Vol. 19 of The Standard Edition of the Complete Psychological Works of Sigmund Freud, Strachey James, ed. (London: Hogarth Press 1953–1975), 18.

38 Locke's doctrine of the continuity of consciousness is explored in Wiggins David, “Locke, Butler, and the Stream of Consciousness: And Men as a Natural Kind,” in Rorty A., ed., The Identities of Persons (Berkeley: University of California Press, 1976).

39 Ownership of actions through conscious experience of agency is explored in Choudhury Suparna and Blakemore Sarah-Jayne, “Intentions, Actions, and the Self,” in Pockett S., Banks W., and Gallagher S., eds., Does Consciousness Cause Behavior? (Cambridge, MA: MIT Press 2006).

40 Dennett Dan's James-inspired example inContents and Consciousness (London: Routledge and Kegan Paul, 1969).

41 I separate the three claims in Moore, Law and Psychiatry, 254–65.

42 For a discussion, see Rorty Richard, “Incorrigibility as the Mark of the Mental,” Journal of Philosophy, 67 (1970): 399424.

43 Morse Stephen J., “New Neuroscience, Old Problems,” in Garland B., ed., Neuroscience and the Law: Brain, Mind, and the Scale of Justice (New York: Dana Press, 2004), 157–98.

44 Moore, Placing Blame, 43–64.

45 Greene and Cohen, “Neuroscience Changes Nothing,” 1776. It is a bit disingenuous of Greene and Cohen to interpret Morse as dealing only at the level of legal doctrine. One of Professor Morse's lifetime projects has been to show that there is no presupposition of free will in the morals and metaphysics that make sense of the legal doctrines we have. See, for example, most recently, Morse , “Determinism and the Death of Folk Psychology: Two Challenges to Responsibility From Neuroscience,” Minnesota Journal of Law, Science, and Technology, 9 (2008): 135.

46 The drive to Cartesian dualism from concerns about free will was classically charted in Ryle Gilbert, The Concept of Mind (London: Hutcheson, 1949). Not all libertarians take refuge in dualism. See Kane Robert, The Significance of Free Will (Oxford: Oxford University Press, 1996); Kane , “Responsibility, Luck, and Chance,” Journal of Philosophy, 96 (1999): 217–40.

47 Descartes , The Passions of the Soul (New York: Hackett Publishing, 1989) (originally published 1649).

48 If the different plane of existence insulates mind from causal influences, that seemingly is purchased by a like inability of mind to do any causing.

49 My own compatibilist views may be found in Moore, Placing Blame, chap. 12.

50 See, e.g., Harman Gilbert, “Moral Philosophy Meets Social Psychology,” Proceedings of the Aristotelian Society 99 (1999): 315–31. A recent summary of the “situationism versus character” debate is Sarkissian Hagop, “Minor Tweaks, Major Payoffs: The Problems and Promise of Situationism in Moral Philosophy,” Philosophers Imprint, 10 (2010): 115.

51 Pockett Susan, Banks William, and Gallagher Shaun, “Introduction,” in Pockett , Banks , and Gallagher , eds., Does Consciousness Cause Behavior? (Cambridge, MA: MIT Press, 2006), 14.

52 I discuss analytical reductionism (in ethics particularly, where it is associated with G. E. Moore), in Moore Michael, “Legal Realty: A Naturalist Approach to Legal Ontology,” Law and Philosophy, 21 (2002): 619705, at 665–69, reprinted in Michael Moore, Objectivity in Ethics and Law (Aldershot, UK: Ashgate, 2004), 365–69.

53 Ibid., 369–70.

54 Ibid., 370–71.

55 Ibid., 372–93.

56 See Moore, Act and Crime; Moore, “Renewed Questions.”

57 I am indebted to my MacArthur Foundation Law and Neuroscience Project Decisions and Intentions Working Group co-chair John Cacioppo of the University of Chicago for much of the information that immediately follows. See Cacioppo and Moore , “Decisions and Intentions Working Group,” Working Paper of the MacArthur Foundation Law and Neuroscience Project, Normal Decision-Making Research Network, January, 2008. See also Pockett Susan, “The Neuroscience of Movement,” in Pockett , Banks , and Gallagher , Does Consciousness Cause Behavior? (Cambridge, MA: MIT Press, 2006), 924.

58 Sherrington's work is summarized briefly in Bennett M. R. and Hacker P. M. S., Philosophical Foundations of Neuroscience (Oxford: Blackwell, 2003), 4142.

59 Eccles John C., “The Initiation of Voluntary Movements by the Supplementary Motor Area,” Achieves of Psychiatry and Neurological Sciences, 231 (1982): 423–39; Goldberg Gary, “Supplementary Motor Area Structure and Function: Review and Hypotheses,” Behavioral and Brain Sciences, 8 (1985): 567–88; Passingham R. E., The Frontal Lobes and Voluntary Action (Oxford: Oxford University Press 1998).

60 Passingham Richard and Lau Hakwan, “Free Choice and the Human Brain,” in Pockett , Banks , and Gallagher , eds., Does Consciousness Cause Behavior? (Cambridge, MA: MIT Press, 2006), 5372.

61 Keller A. I. and Heckhausen H., “Readiness Potentials Preceding Spontaneous Motor Acts: Voluntary vs. Involuntary Control,” Electroencephalography and Clinical Neurophysiology, 76 (1990): 351–61.

62 Haggard Patrick, Cartledge Peter, Dafydd Meilyr, and Oakley David, “Anomalous Control: When ‘Free-Will’ Is Not Conscious,” Consciousness and Cognition, 13 (2004): 646–54.

63 Fried I., Katz A., McCarthy G., Sass K. J., Williamson P., Spencer S. S., and Spencer D. D., “Functional Organization of Human Supplementary Motor Cortex studied by Electrical Stimulation,” Journal of Neuroscience, 11 (1991): 3656–66.

64 Haynes John-Dylan, Sakai Katsuyuki, Rees Geraint, Gilbert Sam, Frith Chris, and Passingham Richard, “Reading Hidden Intentions in the Brain,” Current Biology, 17 (2007): 323–28; Soon Chun Siong, Brass Marcel, Heinze Hans-Jochen, and Haynes John-Dylan, “Unconscious Determinants of Free Decisions in the Human Brain,” Nature Neuroscience, 11 (2008): 543–45.

65 Anderson R. A. and Buneo C. A., “Intentional Maps in Posterior Parietal Cortex,” Annual Review of Neuroscience, 25 (2002): 189220; Desmurget Michael, Reilly Karen, Richard Nathalie, Szathmari Alexandru, Mottolese Carmine, and Sirigu Angela, “Movement Intention After Parietal Cortex Stimulations in Humans,” Science, 324 (2009): 811–13.

66 Haggard Patrick, “Conscious Intention and Motor Cognition,” TRENDS in Cognitive Science, 9 (2005): 290–95; at 295:

“The phenomenology of intention is poorly understood … the phenomenal content of intentions has hardly been studied experimentally. Reliable psychophysical procedures for investigating when and how the effects of an action are represented during preparation and intention would represent a major advance.”

67 Michael Gazzaniga quotes Roger Sperry thusly:

“the centermost processes of the brain with which consciousness is presumably associated are simply not understood. They are so far beyond our comprehension that no one I know of has been able to imagine their nature.”

Gazzaniga , Human: The Science Behind What Makes Us Unique (New York: Harper Collins, 2008), 246.

68 Gazzaniga, quoted in Monastersky Richard, “Religion on the Brain,” Chronicle of Higher Education, May 26, 2006, A–15. Gazzaniga can't claim 100 percent adherence to reductionism because of outliers within neuroscience like Sir John Eccles. See Eccles , “The Initiation of Voluntary Movements;” Eccles and Popper , How the Self Controls Its Brain (Berlin: Springer-Verlag, 1994).

69 Consider, for example, the large promissory notes issued in this reductionist view of intentions:

“Intentions … are patterns of neural activity; or perhaps patterns of synaptic strength which are eventually played out into patterns of neural activity. Either kind of pattern clearly has both temporal and spatial extension, which means it must be located somewhere.”

Susan Pockett, “The Neuroscience of Movement,” 22 n. 1.

70 Greene and Cohen, “Neuroscience Changes Nothing,” 1781.

71 Susan Pockett, “Introduction,” 1–4.

72 Libet B., Gleason C. A., Wright E. W., and Pearl D. K., “Time of Conscious Intention to Act in Relation to Onset of Cerebral Activities (Readiness Potential); The Unconscious Initiation of a Freely Voluntary Act,” Brain, 106 (1983): 623–42. These findings are restated in Libet , “Unconscious Cerebral Initiative and the Role of Conscious Will in Voluntary Action,” Behavioral and Brain Sciences, 8 (1985): 529–39.

73 Haggard Patrick, Newman Chris, and Magno Elena, “On The Perceived Time of Voluntary Actions,” British Journal of Psychology, 90 (1999): 291303, at 291.

74 Banks William, “Does Consciousness Cause Misbehavior?,” in Pockett , Banks , and Gallagher , eds., Does Consciousness Cause Behavior?” (Cambridge: MA: MIT Press, 2006), 235–56.

75 Kornhuber H. H. and Deecke L., Hirnpotentialanderungen bei willkurbewegungen und passiven bewewungen des Menschen: beireitschaftspotential und reafferente potentiale,” Pflügers Archiv, 284 (1965): 117.

76 Passingham and Lau, “Free Choice and the Human Brain.”

77 Libet, “Unconscious Cerebral Initiative,” at 532.

78 Passingham and Lau, “Free Choice and the Human Brain,” 55.

79 Much of the peer commentary in the 1985 symposium in Behavioral and Brain Sciences was on this topic. See, e.g., Latte Richard, “Consciousness as an Experimental Variable: Problems of Definition, Practice, and Interpretation,” Behavioral and Brain Sciences, 8 (1985): 545–46; James Ringo, “Timing Volition: Questions of What and When About W,” ibid., 550–51. See also Haggard Patrick, Clark Sam, and Kalogeras Jeri, “Voluntary Action and Conscious Awareness,” Nature Neuroscience, 5 (2002): 382–85; Haggard Patrick and Clark Sam, “Intentional Action: Conscious Experience and Neural Prediction,” Consciousness and Cognition, 12 (2003): 695707. And the debate continues. Banks William and Isham Eve, “We Infer Rather Than Perceive the Moment We Decided to Act,” Psychological Science, 20 (2009): 1721.

80 Haggard Patrick and Elmer Martin, “On the Relation Between Brain Potentials and the Awareness of Voluntary Movements,” Experimental Brain Research, 126 (1999): 128–33.

81 Passingham and Lau, “Free Choice and the Human Brain,” 55–56.

82 Haggard, Cartledge, Dafydd, and Oakley, “Anomalous Control.”

83 Fried, Katz, et al., “Functional Organization.”

84 This was when subjects were told to attend to their intention to move. Lau H. C., Rogers R. D., Haggard P., and Passingham R. E., “Attention to Intention,” Science, 303 (2004): 1208–10.

85 Haynes, et al., “Reading Hidden Intentions in the Brain.”

86 Haynes, et al., “Unconsciousness Determinants of Free Decision.”

87 Nisbett R. E. and Wilson T. D., “Telling More Than We Can Know: Verbal Reports on Mental Processes,” Psychological Review, 84 (1977): 231–59.

88 Bargh helpfully summarizes into ten categories a lifetime of his research on what he has called “the automaticity of everyday life,” (Bargh , “The Automaticity of Everyday Life,” in Wyer R. S., ed., Advances in Social Cognition, 10 (1997): 161), in his “Free Will Is Un-natural,” in Baer J., Kaufman J., and Baumeister R., eds., Are We Free?: Psychology and Free Will (Oxford: Oxford University Press, 2008), 128–54, esp. at 136–49. These include evidence of “unconscious goal pursuit over time,” “the absence of ability to accurately report on one's intentions,” “the scarcity of conscious self-regulatory capacity,” “the unconscious mimicry of others' behavior,” and other items. Ibid., 148.

89 Ibid., 138.

91 Wegner Daniel, The Illusion of Conscious Will (Cambridge, MA: MIT Press, 2002).

92 In his reply to the open peer commentary on his book, Wegner acknowledges that “people often read much more into ICW than is there,” and that part of the fault for that lies with Wegner's choice of a “fighting” title. Wegner , “Author's Response,” Behavioral and Brain Sciences 27 (2004): 679–88, at 679, 682.

93 Ibid., 682.

94 Ibid., 679.

95 Wegner, The Illusion of Conscious Will, 96.

96 Ibid., 65

97 Ibid., 4.

98 Ibid., 6.

99 Ibid., 7–8, 100–102.

100 Ibid., 110.

101 Ibid., 103–108.

102 Ibid., 113–16.

103 Ibid., 116–20.

104 Ibid., 120–30.

105 Ibid., 125.

106 Ibid., 130.

107 Ibid., 100

108 On Freudian examples and analysis of unconscious actions, see Moore, Law and Psychiatry, 311–22.

109 Wegner, The Illusion of Conscious Will, 130.

110 Ibid., 143–44.

111 Ibid., 8.

112 Ibid., 80.

113 Ibid., 10.

114 Ibid., 74–78.

115 Ibid., 181–84.

116 Ibid., 149–51.

117 Ibid., 10–11.

118 Crick Francis, The Astonishing Hypothesis (New York: Scribrer's, 1994), 3.

119 Richard Dawkins, “Let's All Stop Beating Basil's Car.” Dan Dennett recounts how Dawkins later came to regret his inference that retributivism and moral responsibility disappear with the reduction of us to machines. Dennett , “Some Observations on the Psychology of Thinking About Free Will,” in Baer J., Kaufman J., and Baumeister R., Are We Free? Psychology and Free Will (Oxford: Oxford University Press, 2008), 253.

120 Alluded to briefly above, text at nn. 22–24, supra. Churchland Patriciais a standard example of an eliminative materialist in philosophy. See herNeurophilosophy: Toward a Unfied Science of the Mind/Brain (Cambridge, MA: MIT Press, 1986).

121 Discussed in Moore, Law and Psychiatry, 36–37.

122 Dennett Daniel, Brainstorms (Montgomery, Vt.: Bradford Books, 1978), 63.

123 Quine W. W. O., Ontological Relativity and Other Essays (New York: Columbia University Press, 1969), 100 (“many of our causal remarks in the ‘there are’ form would want dusting up when our thoughts turn seriously ontological”).

124 Moore Michael, “Legal Reality: A Naturalist Approach to Legal Ontology,” Law and Philosophy, 21 (2002): 619705, at 649–53, reprinted in Objectivity in Ethics and Law: Essays in Moral and Legal Ontology (Aldershot, U.K.: Ashgate, 2004, 349–53.

125 Kripke Saul, Wittgenstein on Rules and Private Language (Cambridge, MA: Harvard University Press, 1982), 6668.

126 Greene and Cohen, “Neuroscience Changes Nothing,” 1781.

127 Notice that the text phrases the matter comparatively, that is, that indeterministic chance gives us no more control, etc., than does deterministic causation, It may well be that one can imagine an indeterminism that is compatible with there being choice, effort, control, and therefore responsibility. See Kane Robert, The Significance of Free Will (Oxford: Oxford University Press, 1998), chap. 8. But such compatibility will have no leg up on a like compatibility of deterministic causation with that same choice, effort, control, and therefore responsibility.

128 Clark Thomas, “Fear of Mechanism,” Journal of Consciousness Studies, 6 (1999): 279–93, reprinted in B. Libet, A. Freeman, and K. Sutherland, eds., The Volitional Brain: Towards a Neuroscience of Free Will (Exeter, U.K.: Imprint Academic, 2004), 279–93, at 281.

129 Pockett, “Introduction,” 5.

130 Haggard Patrick and Libet Benjamin, “Conscious Intention and Brain Activity,” Journal of Consciousness Studies, 8 (2001): 4763, at 47–48.

131 Shariff Azim, Schooler Jonathan, and Vohs Kathleen, “The Hazards of Claiming to Have Solved the Hard Problem of Free Will,” in Baer J., Kaufman J., and Baumeister R., eds., Are We Free?: Psychology and Free Will (Oxford: Oxford University Press, 2008), 186.

132 Libet Benjamin, “Do We Have Free Will?,” Journal of Consciousness Studies, 6 (1999): pp. 4757, reprinted in Benjamin Libet, Anthony Freeman, and Keith Sutherland, eds., The Volitional Brain: Towards a Neuroscience of Free Will (UK: Imprint Academic, 2004), 52.

133 Libet, “Unconscious Cerebral Initiative,” 536–38.

134 Libet, “Do We Have Free Will?,” 52–53.

135 E.g., Brass Marcel and Haggard Patrick, “To Do or Not to Do: The Neural Signature of Self-Control,” Journal of Neuroscience, 27 (2007): 91419145, at 9144:

“Our data identify a clear neural basis for inhibiting intentions and thus identify the neural correlate of the veto process. The hypothesis of a special, non-neural veto process could therefore become unnecessary.”

136 Libet Benjamin, “Consciousness, Free Action and the Brain,” Journal of Consciousness Studies, 8 (2001): 5965, at 61.

137 Roediger Henry, Goode Michael, Zaromb Franklin, “Free Will and the Control of Action,” in Baer J., Kaufman J., and Baumeister R., eds., Are We Free?: Psychology and Free Will (Oxford: Oxford University Press, 2008), 208.

138 Daniel Wegner, “Self is Magic,” in J. Baer, et al., Are We Free?, 226.

139 On causal influence going across unchanging states as well as chains of events, see Moore Michael, “The Nature of Singularist Theories of Causation,” The Monist, 92 (2009): 323, reprinted in Moore, Causation and Responsibility (Oxford: Oxford University Press, 2009), 500–501, 510.

140 As Freud is reported to have said (at an awards ceremony in 1927 celebrating his “discovery of the unconscious”), “My only claim to discovery is by being ill-read.” On Freud's non-psychoanalytic antecedents, see Moore, Law and Psychiatry, 126–34, 250–51, 265, 327.

141 Ibid., 126–42, 249–80, 322–37.

142 Sigmund Freud, Introductory Lectures on Psycho-Analysis, in the Standard Edition, Vol. 16, 285.

143 Moore, Law and Psychiatry, 128, 133, 256, 274–75.

144 Dennett, Content and Consciousness, 90–96. The role of consciousness (in the sense of privileged access) is also emphasized by Choudhury Suparna and Blakemore Sarah-Jayne, “Intentions, Actions, and the Self,” in Pockett S., Banks W., and Gallagher S., eds., Does Consciousness Cause Behavior? (Cambridge, MA: MIT Press, 2006), 4849 as crucial to ownership of actions and self-construction:

“the feeling of agency … is a mark of selfhood … the conscious awareness of unconsciously monitored actions is the means by which our actions are experienced as subjectively real, willed, and owned. Consciousness is thus embodied: it is through action that we become conscious of ourselves as “distinct selves.” (Emphasis in original, citation omitted).

145 Pockett, “The Neuroscience of Movement,” 19–21.

146 Wegner gets the universal claim only by separating what is referred to by “will” into the phenomenal (or conscious) will, and the empirical will. If the claim is that the conscious will (i.e., phenomenology alone, with no physical realization) never causes movement, all can agree (for this would be a dualism). But Wegner's data on what he calls the illusion of control cases is much more interesting than this; the data suggest that in such cases, willing as such (the deep reference being to its essentially physical nature) does not cause the behavior. The only point in the text is that this more interesting point is also limited to the data explored by Wegner, viz, the illusion of control cases.

147 As Wegner notices in his discussion of Libet's findings. Wegner, Illusion of Conscious Will, 49–55; Wegner, “Author's Resopnse,”684: “The idea of ICW is not dependent on Libet's finding … this is because ICW … is not about whether thought causes action. It is about whether the experience of conscious will reflects such causation.”

148 Wegner, “Self Is Magic,” 233.

149 Freud Sigmund, “The Unconscious,” Collected Papers, IV, Strachey J., ed. (New York: Basic Books, 1959), 102.

150 Moore, Law and Psychiatry, 142–52.

151 Libet, “Unconscious Cerebral Initiative,” 536.

152 Haynes, “Unconscious Determinants of Free Decisions,” 543.

153 Ibid., 545. Bennett and Hacker, Philosophical Foundations of Neuroscience, 68–72, collect numerous other examples of neuroscientific animizing of the brain.

154 David Hume, section 8.20 of An Enquiry Concerning Human Understanding, “Liberty and Necessity.”

155 Sturgeon Nicholas, “What Difference Does It Make Whether Moral Realism Is True?,” Southern Journal of Philosophy, 24 (1986): Supplement, 115–41, at 136 n.1.

156 Greene and Cohen, “Neuroscience Changes Nothing,”

157 De Baigard Felipe, Mandelbaum Eric, and Ripley Davidhave a go at testing these sociological speculations of Greene and Cohen. See theirResponsibility and the Brain Sciences,” Ethical Theory and Moral Practice, Springer Science on-line publishing, 24 December 2008.

158 Danto Arthur, “Consciousness and Motor Control,” Behavioral and Brain Sciences, 8 (1985), 540–41.

159 The beginnings of my answers to some of these challenges may be found in Moore , “Libet's Challenge(s) to Responsible Agency,” in Sinnott-Armstrong Walter and Nadel Lynn, eds., Conscious Will and Responsibility (Oxford: Oxford University Press, 2010), 207–34, and in lecture form, at http://www.cas.illinois.edu/Events/ViewPublicEvent.aspx?Guid=8A6A6DD2-699A-478F-8651-C8C2C6D1F389, (Nineteenth Annual Center for Advanced Study Lecture, September, 2009), and http://www/nmc.uni-freiburg.de/video/Videoaufzeichnungen/rechtswissenschaften/recht-ws-2009-10, (Lecture to the Institute for Legal Philosophy and Public Affairs, Albert-Ludwigs University, Freiburg-im-Breisgau, Germany, March, 2010). My colleagues Al Mele, Adina Roskies, and Stephen Morse have also done recent work that tracks some of these concerns. See Mele Alfred, Free Will and Luck (Oxford: Oxford University Press, 2006); Mele Alfred, Effective Intentions: The Power of Conscious Will (Oxford: Oxford University Press, 2009); Roskies Adina, “Neuroscientific Challenges to Free Will and Responsibility,” Trends in Cognitive Science, vol. 10, no. 9 (2006), www.sciencedirect.com; Morse Stephen, “Determinism and the Death of Folk Psychology: Two Challenges to Responsibility from Neuroscience,” Minnesota Journal of Law, Science, and Technology, 9 (2008): 135.

* In the researching and writing of this essay I have benefitted from the generous support, both financial and otherwise, of the MacArthur Foundation's Project in Law and Neuroscience 2007–2010. The paper is a (considerably) expanded version of the Responsibility Group Working Paper on the Challenges of Neuroscience, presented by me to the winter 2010 Santa Monica meeting of the Criminal Responsibility and Prediction Research Network of the MacArthur Foundation's Law and Neuroscience Project. My thanks go to my colleagues in the Network for their suggestions and comments. The essay has since been presented to the Workshop in Law and Philosophy, University of Texas, Austin and to the Conference on Law and the Science of Moral Judgment, Centre for the Study of Mind in Nature, University of Oslo, Norway. My thanks go to the participants at these two presentations for their helpful comments as well as to the other contributors to this volume. My particular thanks go to Robert Kane, who was my commentator at the University of Texas, and to Michael Gazzaniga and Stephen Morse, each of whom read and commented separately on this paper.

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