In the field of criminal law there exist established defences such as provocation and self-defence which mitigate the culpability of the accused. However, with recent advances in neuroscience this stands to change following developments revealing the genetic and biological functions of the human brain and their relationship with the person’s capacity to make decisions for oneself. Broader questions of whether the brain can be divorced from the self, and its ramifications for personal responsibility and morality are raised in determining whether the ‘brain made me do it’ indeed stands as a valid defence to crimes committed.
This essay will argue against such a case, that such neurological arguments calling for a rethinking in judicial sentencing, legal definition of guilt and intent as too tenuous on a philosophical standpoint. The first part will examine the notion of punishment under a ‘neurolaw’ context and its purposes in the face of diminished personal responsibility, and the utilitarian counter-argument for punishment preserved as a form of community protection rather than retributive justice. The second part addresses the flaws in equating the determinist overtones of neurolaw with an apathetic attitude of an individual’s actions being inevitable. Through a critique of the inconsistencies neurolaw poses and the difficulty in reconciling a sentencing system which focuses on personal responsibility, this essay seeks to dismiss divorcing of the brain and he self as legal fiction, despite scientific fact.
Personal responsibility versus the ‘greater good’ – the Utilitarian argument Supporters of neurolaw cast doubt on the concept of free will given our brain’s biological predisposition, and therefore similarly calling into question the true purpose of punishment. After all, how do we punish those who did not act out of their own accord, but merely had followed their brain’s ‘hard-wiring’? Yet this argument can be successfully countered adopting a utilitarian stance, as the claim of ‘my brain made me do it’ is easily defeated on grounds that the culpability of the accused in committing the crime is not contingent on his or her own control of actions, but rather is dependent on what society judges to be a threat to their safety. Therefore, a determination of guilt should not be construed narrowly on the accused’s personal actions, but instead involves a process of determining how to best protect society in light of the accused’s criminal act.
By adopting a utilitarian approach to determining the morality or ‘wrongness’ of the accused’s crime, the purpose of punishment shifts away from scrutinising their personal idiosyncrasies and instead introduces a community effort to follow a path in which utility is maximised. In this case, the exercise of punishing the criminal would seek to minimise the harm caused by that criminal, presumably by incarceration. Therefore, it seems that the purpose of punishment would be to prevent future harm to the public, at least moreso than by a judgment of the accused’s character. Fundamental to the utilitarian’s argument towards punishment would be the ‘principle of utility’, that is, to always to act for the greatest good of the greatest number. The logic of this is seen wherein ‘happiness’ is an intrinsically good thing’, whilst misery and suffering are a bad thing. Therefore, according to Utilitarianism, all actions and social arrangements should be aimed at maximizing the sum total of happiness or the net balance of happiness over suffering of the world. In such a way, quantity is quality. Therefore, utilitarianism provides a common currency of moral thought, the different concerns of different parties and the different sorts of claims acting on one party, can all be cashed (in principle) in terms of happiness.
With this system of a ‘common currency’, the utilitarian can now point to punishment as a means for the individual to be and remain accountable to society, the...
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