The Moral Conflict of Law and Neuroscience

The Moral Conflict of Law and Neuroscience

Peter A. Alces

Print publication date: 2018

ISBN: 9780226513362

Publisher: University of Chicago Press

Abstract

This book is, essentially, a thought experiment: what should the law be in order to govern the affairs of human agents who do not have free will? Proceeding from the premise that human agents are determined creatures who lack free will, and therefore lack moral responsibility, this book considers where and how the law fails to appreciate that humans cannot be morally blameworthy and joins the normative conversation, in order to open new avenues of thought. Aspects of criminal law depict the neuroscientific naïveté of the doctrine, such as the inconsistent treatment of those with equally disadvantageous cognitive deficits, congenital or acquired. Further, normative criminal law theory fails to understand authentic human agency from the perspective vindicated by neuroscience, a failure exemplified by retributive theories of punishment, and instead relies on folk psychological concepts. Like criminal law, many concepts of tort law doctrine operate based on an inauthentic view of human agency—including the standard of care, proximate causation, and the compensability as well as monetization of injuries. This inauthentic conception is pervasive in non-instrumental normative theories of tort, which are demonstrated to be incoherent. Contract law doctrine too relies on inaccurate folk psychological concepts, such as consent, that ignore the situationist nature of human agency. And non-instrumental theories of contract rely on dubious assumptions of promise and agreement that conflict with a materialist stance. Finally, after assailing the straw men founding compatibilist views, this book anticipates an “Age of Realization” ushered in by a broader, deeper neuroscientific understanding.