Neuroscientific Challenges to Retributivism
Michael S. Pardo
University of Alabama School of Law
European University Institute; Rutgers University School of Law, Camden; Swansea University School of Law; European University Institute - Department of Law (LAW)
THE FUTURE OF PUNISHMENT, Thomas Nadelhoffer, ed., Oxford University Press, Forthcoming
U of Alabama Public Law Research Paper No. 1783823
We examine two recent challenges to retribution-based justifications for criminal punishment based on neuroscientific evidence. The first seeks to undermine retributivism because of the brain activity of subjects engaged in punishment decisions for retributive (as opposed to consequentialist) reasons. This challenge proceeds by linking retributivism with deontological moral theories and the brain activity correlated with deontological moral judgments. The second challenge seeks to undermine retributivism by exposing, through neuroscientific information, the purportedly implausible foundation on which retributivism depends: one based on free will and folk psychology.
We conclude that neither challenge succeeds. The first challenge fails, in part, because the brain activity of punishers does not provide the appropriate criteria for whether judgments regarding criminal punishment are justified or correct. Moreover, retributivism does not necessarily depend on the success or failure of any particular moral theory. The second challenge fails because neuroscience does not undermine the conceptions of free will or folk psychology on which retributivism depends. Along the way, we point out a number of faulty inferences and problematic assumptions and presuppositions involved in these challenges to retributivism.
Number of Pages in PDF File: 34
Keywords: criminal punishment, retributivism, neuroscience, deontology, free will, folk psychology
Date posted: March 14, 2011 ; Last revised: December 26, 2013