Neuroscience, Normativity, and Retributivism
Michael S. Pardo
University of Alabama School of Law
European University Institute; Rutgers University School of Law, Camden; Swansea University School of Law
December 5, 2011
THE FUTURE OF PUNISHMENT, Thomas Nadelhoffer, ed., Oxford University Press, Forthcoming
U of Alabama Public Law Research Paper No. 1968552
Advocates for the increased use of neuroscience in law have made bold and provocative claims about the power of neuroscientific discoveries to transform the criminal law in ways large and small. Perhaps the boldest and most provocative of these claims are made in an influential article by Joshua Greene and Jonathan Cohen. They claim that neuroscience will reveal that criminal defendants are not morally responsible for their actions and that this revelation will thereby undermine retributivist justifications for criminal punishment. In the process of resolving previously intractable debates between consequentialism and retributivism, neuroscience will also, they contend, resolve age-old debates about free will. In this essay, we discuss several serious problems with their argument. We maintain that no neuroscientific discoveries will lead to the sorts of changes predicted by Greene and Cohen and, even if they did, those changes would not be the product of neuroscientific insight but result from unwarranted and problematic inferences which ought to be resisted.
Number of Pages in PDF File: 29
Keywords: neuroscience, criminal punishment, retributivism, consequentionalism, moral responsibility, free will, determinism, compatibilism, folk psychologyAccepted Paper Series
Date posted: December 6, 2011
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