Madness, Badness, and Neuroimaging-Based Responsibility Assessments
LAW AND NEUROSCIENCE, CURRENT LEGAL ISSUES, Vol. 13, pp. 79-95, Michael Freeman, ed., 2011
17 Pages Posted: 12 Apr 2010 Last revised: 1 May 2011
Date Written: April 13, 2010
On the capacitarian account responsibility tracks capacity - i.e. reductions in a person’s agency-relevant mental capacities entail reductions in the degree of their responsibility. This entails that if the mental capacity to (e.g.) empathise was necessary for moral agency, then a person that commits murder but who lacks this capacity should be at least partially excused. The capacitarian account also allows that if neuroimaging scans could reveal people’s mental capacities then such scans could play some role in assessing responsibility. However, viewed from another angle, a person who lacks the capacity to empathise could also be described as cold blooded killer - i.e. as a bad rather than a mad person - and under this description it seems more appropriate to condemn rather than to excuse them. Although this might seem to challenge the capacitarian account, and with it the idea that neuroscience might have some role to play in helping us to assess people’s responsibility, I will argue that this challenge is illusory. On my account, this challenge rests on a conflation of two different kinds of culpability, and on a failure to notice that each of these kinds of culpability plays a role at a different stage in the criminal trial.
Keywords: responsibility, neurolaw, madness, badness, psychopathy, illness, disorder
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