Law and Behavioral Morality
NOMOS LII: EVOLUTION AND MORALITY, Sandy Levinson, ed., 2009
43 Pages Posted: 2 Feb 2009 Last revised: 24 Dec 2014
Date Written: February 1, 2009
This paper names, describes and contextualizes behavioral morality - a form of moral philosophy which claims that deviant behavior attributable to a physical cause is either less or is not at all morally blameworthy. This movement turns to evolutionary science, genetics and neuroscience to challenge the social institutions that regulate human behavior. The criminal justice system, as the first and most obvious of such institutions, has been the most vulnerable to its scrutinizing gaze. Part I traces the scientific advances in understanding human behavior from evolutionary science, genetics and neurobiology, which motivate the moral claim. This part situates behavioral morality as a movement distinct from evolutionary biology and the law, and demonstrates the points of divergence. Part II illustrates the tension between behavioral morality and between existing normative accounts of criminal responsibility, which embrace human agency. This part also discusses cases in which behavioral moralism has been introduced, and the basis for their success or failure. Part III then seeks to reconcile behavioral moralism with the normative purposes of criminal law, and to potentially bring the movement within the fold of the broader law and evolutionary biology movement. To do so, this paper offers an alternative approach for adherents of behavioral moralism to explore. It suggests that behavioral moralism may gain more traction by embracing the fundamental underpinnings of the system, while still working to integrate scientific evidence in the system. Because the concept of reasonableness underlies much of criminal responsibility doctrine, behavioral moralists could seek to inform that concept with more scientifically robust data, rather than attempting to remove it entirely from the criminal law. Finally, Part IV opens about stigmatization of individuals who have scientific accounts of their behavior.
Keywords: behavioral morality, moral philosophy, evolutionary biology, neuroscience, behavioral genetics, criminal law, reasonable person, reasonableness, stigma, punishment
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