Neuroscientific Challenges to Retributivism

THE FUTURE OF PUNISHMENT, Thomas Nadelhoffer, ed., Oxford University Press, Forthcoming

U of Alabama Public Law Research Paper No. 1783823

34 Pages Posted: 14 Mar 2011 Last revised: 26 Dec 2013

Michael S. Pardo

University of Alabama School of Law

Dennis Patterson

European University Institute; Rutgers University School of Law, Camden; Swansea University School of Law; European University Institute - Department of Law (LAW)

Date Written: 2011

Abstract

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.

Keywords: criminal punishment, retributivism, neuroscience, deontology, free will, folk psychology

Suggested Citation

Pardo, Michael S. and Patterson, Dennis, Neuroscientific Challenges to Retributivism (2011). THE FUTURE OF PUNISHMENT, Thomas Nadelhoffer, ed., Oxford University Press, Forthcoming; U of Alabama Public Law Research Paper No. 1783823. Available at SSRN: https://ssrn.com/abstract=1783823

Michael S. Pardo (Contact Author)

University of Alabama School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

Dennis Patterson

European University Institute ( email )

Villa Schifanoia
133 via Bocaccio
Firenze (Florence), Tuscany 50014
Italy

Rutgers University School of Law, Camden ( email )

Camden, NJ 08102-1203
United States
856-225-6369 (Phone)
856-751-8752 (Fax)

Swansea University School of Law

Singleton Park
Swansea, SA2 8PP
United Kingdom

European University Institute - Department of Law (LAW) ( email )

Via Boccaccio 121 (Villa Schifanoia)
I-50122 Firenze
ITALY

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