Advances in neuroscience might make it possible to develop techniques for directly altering offenders’ brains, in order to make offenders more responsible and law-abiding. The idea of using such techniques within the criminal justice system can seem intuitively troubling, even if they were more effective in preventing crime than traditional methods of rehabilitation. One standard argument against this use of brain interventions is that it would undermine the individual’s free will. This paper maintains that ‘free will’ (at least, as that notion is understood by those who adopt the influential compatibilist approach) is an inadequate basis for explaining what is problematic about some direct brain interventions. This paper then defends an alternative way of objecting to certain kinds of direct brain interventions, focusing on the relationship between the offender and the state rather than the notion of free will. It opposes the use of interventions which aim to enhance ‘virtue responsibility’ (by instilling particular values about what is right and wrong), arguing that this would objectify offenders. In contrast, it argues that it may be acceptable to use direct brain interventions to enhance ‘capacity responsibility’ (i.e. to strengthen the abilities necessary for the exercise of responsible agency, such as self-control). Finally it considers how to distinguish these different kinds of responsibility enhancement.
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It might be questioned whether these interventions are genuinely enhancements or whether they are treatments. I will use the term ‘enhancement’ because they are not strictly needed in order to treat a disease.
Compatibilists maintain that even if a person lacks control over the factors that determine her action, she may still control the action itself.
It might be thought that compatibilism as a whole fails if it cannot demonstrate that victims of intuitively troubling brain manipulation lack compatibilist free will. However, some compatibilists defend their theory by insisting that certain victims of manipulation are in fact free, despite the initial counter-intuitiveness of this conclusion (e.g. McKenna 2008). This paper is neutral on whether compatibilism as a whole is successful. I merely claim that intuitively objectionable kinds of brain interventions do not necessarily undermine free will in the compatibilist sense and that therefore we must look for another type of objection to such interventions.
Strictly speaking, Fischer and Ravizza (1998) emphasise that, in order for the agent to be free, it must be true that the ‘mechanism’ underlying the agent’s action would react to at least one reason for behaving differently, rather than that the agent herself would react to that reason (although, in most cases, if the mechanism would react then the agent herself would also react). See text in the next section for more on mechanisms.
Compatibilists differ over whether the flexibility possessed by rational agents in a deterministic world genuinely amounts to a capacity to behave differently from the way that one in fact behaves. The following theorists argue that it does: Fara 2008; Vihvelin (2004). The following theorists disagree, maintaining that the (mechanism’s) disposition to react differently if different reasons were present is simply a feature of the way in which the agent actually behaves: Fischer and Ravizza (1998).
In this example there are only four possible considerations that would induce the agent to act differently. But the intervention would still be troubling even if the intervener had selected a larger number of considerations. It should be noted, however, that it would be unreasonable to demand that the agent must be responsive to a very wide range of considerations for acting differently. Many normal agents adhere to certain courses of action in a very rigid way, and would only depart from their course under fairly extreme conditions, and yet are considered free (if sometimes fanatical, or sometimes principled). They may even be blamed or praised for their rigidity. Fischer and Ravizza (1998, p. 70) stipulate that it is only necessary for there to be one consideration that would cause the agent’s mechanism to react differently.
It might be thought that accounts of rational flexibility are deeply flawed if they imply that agents still possess this rational flexibility despite having been manipulated in the way described above. These agents, it might be said, cannot really have rational flexibility. However, it is not the aim of this paper to argue that such accounts are flawed qua accounts of ‘rational flexibility’. This paper is neutral as to whether or not the subjects of these interventions really do have rational flexibility. The point is just that the compatibilist theories being discussed imply that they do, and so these accounts of rational flexibility cannot be used in order to object to these interventions. Compatibilists who want to hold on to their theories, but still oppose these interventions, should find another way of objecting to these interventions that is not based on rational flexibility (such as the objection that I defend later in this paper).
See e.g. Fischer and Ravizza (1998, pp. 230–231): “…ahistorical…accounts cannot adequately treat such cases…. What seems relevant is not only the fact that the mechanism issuing in the action is suitably reasons-responsive; what also matters is how that mechanism has been put in place”.
Fischer and Ravizza (1998, pp. 235–236) do acknowledge that a person is non-responsible if she has received further manipulation designed to make her endorse the desires that have been implanted in her. However, I think that implanting extremely strong desires in offenders can be objectionable per se whether or not the offender has been programmed to endorse them.
Or indeed non-rational factors could influence behaviour by making certain factors less salient. It is conceivable that a reduction in testosterone might somewhat reduce an individual’s attraction to anti-social behaviour (relative to their other desires) and this might on a particular occasion ‘tip the scales’ for an individual, causing them to decide to engage in a more law abiding activity instead. For instance, there is some evidence that testosterone levels can influence pro-attitudes connected with anti-social behaviour. It has been suggested that a natural decline in testosterone in men as they age may sometimes partly account for a reduced inclination to reoffend (Quinsey 2002, p. 3), or a reduction in certain kinds of sexual reoffending in particular (Barbaree et al. 2003). If it turns out that fluctuating testosterone levels do indeed influence pro-attitudes, this surely does not by itself show that the individuals concerned lack free will. It is therefore implausible to suggest that influencing a person’s behaviour partly through a non-rational means necessarily deprives them of free will.
In the example I envisage, the change in pro-attitudes is only partly brought about by non-rational factors, because it is also partly explained by factors such as the presence of the consideration that the person now ‘gets’. The non-rational factor (e.g. alteration in hormones) by itself is not sufficient to bring about the new pro-attitude in the absence of the consideration. However, the person was aware of (and unmoved by) the consideration before the alteration in hormones occurred, the agent would not have been moved by the consideration if not for the alteration in hormones, and the awareness of consideration itself did not bring about the alteration in hormones.
Daniel Dennett calls a similar line of argument “The Principle of Default Responsibility” which states that “If no other agent is responsible for your condition and the acts that flow from it, you are. The buck stops there, if you are competent.” (Dennett 2011, p. 11, emphasis in original).
It might be objected that the victim of manipulation is non-responsible regardless of whether the manipulator was sane or insane. However, the objector must then explain why an insane manipulator is relevantly different from ‘ordinary’ deterministic forces. The objector cannot use Bublitz and Merkel’s argument that the manipulator’s own culpability deflects blame away from the manipulated agent.
I do not claim that this is the only basis for deciding whether or not someone can rely on another person’s apparent consent. The rules governing consent vary depending on the context, e.g. whether consent is being used as a criminal defence, or in the context of the validity of different types of contract. Public policy considerations may often be influential, e.g. the idea that it is important not to undermine stable contractual relationships by too frequent challenges concerning the freedom of the contracting parties. It may be argued that certain constraints on freedom are so widespread that it would be impossible for any contract to be relied on if these constraints were allowed to render the contract invalid. Yet these pragmatic considerations cannot shed light on whether people subjected to such constraints really are free or unfree. It is impossible within the scope of this article to give a full discussion of all the different considerations that may have a bearing on the validity of consent in every context. However, the proponents of the nature/person distinction have not produced an example which clearly supports their position.
For one account of how the penal system could be reformed to place more emphasis on moral dialogue see Duff (2001).
My position on this second issue is informed by Bomann-Larsen (2011).
For an interesting discussion of this issue see Newman et al. (2010).
This issue is discussed in Kennett (2006).
It should also be noted that the intervention in this case did not conform to my second justification for allowing the offender to consent to medical interventions as part of his rehabilitation, i.e. the value of protecting society and of facilitating the offender’s efforts to reform. Chemical castration could in no way have furthered these ends, because Turing’s homosexuality gave rise to no danger to society and no need for him to ‘reform’.
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My research was funded by the Clark Foundation for Legal Education and by the Arts and Humanities Research Council. I am grateful to Antony Duff, Gerben Meynen, James Chalmers and Nicole Vincent for their helpful comments on earlier drafts of this paper.
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Shaw, E. Direct Brain Interventions and Responsibility Enhancement. Criminal Law, Philosophy 8, 1–20 (2014). https://doi.org/10.1007/s11572-012-9152-2
- Moral enhancement
- Free will