NZLII Home | Databases | WorldLII | Search | Feedback

Canterbury Law Review

University of Canterbury
You are here:  NZLII >> Databases >> Canterbury Law Review >> 2001 >> [2001] CanterLawRw 1

Database Search | Name Search | Recent Articles | Noteup | LawCite | Download | Help

Gillett, Grant --- "Neil Williamson Memorial Lecture 2001- Moral Responsibility and the Brain: Jurisprudential Reflections" [2001] CanterLawRw 1; (2001) 8 Canterbury Law Review 1



Recently, in The Ottawa Citizen,[1] Dr Tana Dineen reported a series of exculpatory considerations that were based on expert psychiatric illness about the brain states of the perpetrators of various violent-crimes. They included a sex killer who was said to suffer Multiple Personality Disorder (about which I have written elsewhere[2] ), a woman who shot her husband while he slept and was said to have suffered from automatism as a result of battered wife syndrome, the 1978 Twinkie defence in which the actions of two murderers were ascribed to temporary insanity resulting from the ingestion of sugar, and the knifing and raping of a sleeping woman said to result from the fact that the murderer had been a blue baby and therefore had a "crocodile brain". Common to all of these cases is the belief that the state of the brain and the events which go on within it, themselves caused by events beyond the agent's control, can explain and even excuse criminal acts through their causative role in the production of those acts. It is this belief that I want critically to examine.

Most people believe several things about human agents and their actions and these commonsense things form part of our forensic paradigm for dealing with criminal acts and assessing the intent of the perpetrators. It is helpful to set out this commonsense or forensic conception before we consider the implications of brain science for our assessments of moral responsibility.

In the paradigmatic case we have an agent who, with malice aforethought, embarks upon a set of actions which result in something happening to somebody else, the victim. In the copybook case, the agent formulates a plan for certain reasons or motives and prosecutes that plan to bring about the envisaged end by doing those things required to achieve the desired effects. We recognize, however, that this paradigm must be modified to meet the endless variety of cases that the everyday world throws up. For instance we realize that sometimes the action all happens, more or less, in a flash and that therefore the rational process implied by our model does not reflect the events in real time as they actually unfold. For this reason we simplify the essentials down to an intent to do a certain act or the mens rea and the doing of the act or the actus reus; of these mens rea is the fulcrum on which the guilt of the act is balanced -actus nonfacit reum nisi mens sit rea.

When this simplified construction of action is fed to a philosopher (of the scientific bent), we end up with a simple theory of action in which the intent is the proximate cause of the act and, like all other causes, has itself a causal history (as suggested by John Stuart Mill[3] ). The relevant causal history has seemed to philosophers to imply that "to act is to be caused to behave by mental states of one's own".[4]

On this view, the beliefs and desires of the agent which explain or lead to the action are causally produced and productive states inside the agent which manifest themselves, among other things, by causing intentions and actions. It is a small step from this view to the idea that such states might be direct correlates of brain states and events which move the agent's body and that our action talk might be a more folksy way of talking about human behaviour (called "folk psychology" or, perhaps, "the psychology of the Clapham omnibus") but that human behaviour is really a set of bodily movements caused by states of the brain[5] . Thus we might say:

He believed that Herman was his rival and desired that he have unrivalled access to Eloise and so shot Herman.

This according to the model is both a causal and a rational or meaningful story of the murder of Herman by Joachim.

We might object that an explicitly formulated intent may not occur in such a case. Joachim may just feel the upsurge of the belief and desire and act murderously. However the explicit or conscious intent as a mental state experienced before the act does not unseat the general theory because we recognize that issuing in action is, in a sense, all there is to forming an intent given the relevant desires and beliefs. On this view the mens rea can be a summation of the beliefs and desires (or other mental states - which some would identify with brain states) which jointly bring about the act.

The problem is that the causal view does not seem sufficient to capture the deliverances of commonsense. Numerous examples have been produced, one of the most memorable being Donald Davidson's nervous mountaineer.[6] In this case there are two mountaineers one of whom, call him Chuck, slips and is being saved from plunging to his death by his companion's steely grip on a rope. Unfortunately the companion, call him Woody, has a streak of the Woody Allen in him such that the fear that he might fall, his desire not to fall, and his further fear that he might let go and let Chuck fall to his death, combine to unnerve him so badly that he lets go and Chuck falls. This, in philosophy, is known as a "deviant causal chain" case in which the belief and desire cause the action but not in the way that folk would call intentional. It is true that Woody's fear of death and his belief that Chuck might cause him to fall to his death did cause him to let go but we would not say that his letting go was an intentional act done for those reasons. Thus we have to say something about an intentional action being caused by the relevant beliefs and desires in the right kind of way - a way required by reason-giving explanation and not just causal explanation. But therein lies the rub for causal theorists.

For some philosophers the problems in this kind of case are just dismissed and a causal account is instated as the only right one on the basis that causality is a kind of explanation that is the only genuine kind of explanation to be found in the natural world. Actions are events in the natural world and therefore explanations of action are causal explanations (Kim, for example, takes this view[7] ). They conclude that behaviour is physical stuff done by critters like us and therefore must be caused by physical events in critters like us and that we ought to just get on with looking for the right causal events (which presumably are to be found in the brain).

This is a very bad theory for those who want to resist the erosion of responsibility for action, that is complained about in The Ottawa Citizen, because once you have got a casual event prior to the action then there is a causal chain that does not stop in the agent but is, in principle, traceable to antecedent events that cause the thoughts and feelings of the agent - things like upbringing, genes, a bad break in life, too much junk food, and so on. Of course, you might say that as long as the agent's thoughts and feelings (or beliefs and desires to use "philosophy speak") play a pivotal role in the causal chain then that is as good as it gets. But that implies an acknowledgement that the antecedents of human action are, in some respects, like the antecedents of any non-moral event, such as an avalanche (or an outburst of rage in the context of automatism), which may tragically but non-culpably take human life. Most of us would like to be able to trace some kind of important difference apart from that attributable to the events leading to one being a matter of ordinary biology and not geology (or pathology).

In fact, for certain psychophysiologists and others who share the biological orientation toward psychology the idea that human action is just a manifestation of subpersonal or neurophysiological events in the brain is based on proven fact. For these theorists, the closely linked forensic concepts of freedom of the will and individual responsibility for behaviour are scientifically invalidated (meat and drink to the Twinkie defence).

Their view is based on experiments studying brain activity prior to and resulting, in voluntary actions. They propose the following "argument to physical priority":[8]

i. The mental event of intending to act causes the act;
ii. The physical/brain event precedes the mental event of intending, and is unconscious; therefore
iii. The physical event precedes and causes the mental event of intending; therefore
iv. Conscious events are determined by their physical counterparts in brain activity.

The argument is supported by a set of experiments in which a subject had to make a voluntary response on receiving a certain stimulus. While this was going on his brain activity was sampled and it was found that a set of characteristic events happened in the brain before the act was performed.[9] However, the crucial premise - (ii) - relies on several contestable assumptions:

(a) that there is a mental event which is the cause of the act;
(b)that the timing of a mental event is possible on the basis of its reportability; and
(c) that the detectable physical event is the cause of the act rather than being a reflection of preparatory moves or neural correlates of acting with intent.

We can examine these in turn.

Human acts are events caused by preceding mental events caused intentions.

This view rapidly leads to certain well-known absurdities. Consider the straightforward act of walking to the door of my room to go out for dinner. How many actions are involved here (each presumably with their own intention)? Do I intend every step I take or only the whole action? How long does it take me to commit such a "complex" action or do I just get it going and it happens automatically from then on? But surely I take each step intentionally or voluntarily? The problems and implausibilities multiply the closer one looks (and, as Philippa Foot has remarked, our mental lives look more and more exhausting). Hampshire makes a telling comment:[10]

An ordinary human action is a combination of intention and physical movement. But the combination of the two is not a simple additive one. The movement is guided by the intention, which may not be and often is not, distinguishable as a separate event from the movement guided. I know that my action is performed at will, and I know what I am trying to do. But this does not necessarily imply that there has been some distinguishable mental event which was an act of will. I often cannot, in reflection or introspection, distinguish as separable episodes the thought of what is to be done from the actual doing of it.

The diagnosis of the "philosophical illness"(to use Wittgenstein's phrase[11] ) leading to this strained and distorted account of human action is that it is caused by trying to force the dynamic flow of human activity into the pigeonholes of an inadequate theory. What is more the flow at the psychological level of conscious experience is matched by a flow at the brain level. The brain exhibits a constant stream of activity and the human being is in a continuous interaction with the environment. It is artificial to divide this up into discrete acts and discrete causal events which cause them; but that is required by the causal event model of intention.[12]

The experiment assumes that we can time a mental event by timing the agent's ability to report it.

What reason do we have for believing this? That assumption would follow from the view that we are conscious of the mental event that causes an action. But are we? Making up our mind to do something is not something we normally observe and report on. Our observations and reports are skilled activities. One might therefore conclude that there is a skill to be learnt in the knowledge of our own intentions as there would be in any other area. We might also notice that where we come to know of an event which takes shape, happens, and then passes the skills take time to refine. Thus the decision that I have formed the intention to act might be like a decision that a cloud that I am watching has changed shape and, if so, precision in timing may be an elusive goal, only taken to be straightforward because it is something I do not often bother to do and therefore it happens virtually unnoticed, as it were. In fact, the remark "Now it is clear to me, I have made up my mind" seems not at all to be like the report of an observation. Rather it is a resolution - as Hampshire has noted.[13]

The argument assumes that the detectable brain event is the cause of the conscious intention and therefore of the action.

This assumption also seems suspect in that it is possible that an action takes shape and is exhibited without any definitive prior event being identifiable or that the continuous and dynamic structure of normal human action makes any such theory otiose. What is posited here might be an artificial reflection of an experimental situation in which the actions are of a staccato and discrete kind. The only reason we are inclined to take it to indicate anything at all about normal human activity is that we do our analysis in thrall to a defective theory of human agency. Rather than paying attention to such a theory with all its deficiencies we perhaps ought to be more mindful of the influences which can come to bear on the voluntary activity for which one is unequivocally responsible and the ways in which these influences are or are not able to be resisted. Immanuel Kant, to whom we shall come, was acutely conscious of this point, and its implications for moral responsibility.[14]

However the scientist, ever looking to extend his claims to expertise, might counter that this is all beside the point, that in some sense or other the cause of the action, even if we do describe it as a mental event, must be identical with some event in the brain. What other view is reasonable in the light of current knowledge about the brain and behaviour? Some philosophers would here chip in with their own "Yea and Amen". Daniel Dennett, a philosopher somewhat of this stripe, has proposed a theory that he considers favourable to physicalism. However I think that when we examine it we shall find that it has certain anti-physicalist implications. The theory gives us a radical "take" on human conscious life and therefore on freedom of the will and moral responsibility. According to Dennett, one's conscious life is a story spun by a narrator - oneself - on the basis of an underlying interaction between the brain and the world.[15] Dennett uses a number of examples from psychology, psychophysiology, and neurology to suggest that what appears as conscious experience is not a direct reflection of the physical events going on between brain and world but is rather a narrative constructed on the basis of an ability to articulate the results of that interaction in meaningful terms.

First, there are well known phenomena to do with memory insertion such that events after a remembered episode are able to alter the memory of that episode.[16] This suggests that the way we remember an event is not just a reflection of the causal transaction between brain and world as it happened but is also influenced by later editorial rewrites which render it coherent with everything else we know about what happened such that we end up with a well-integrated narrative. Dennett somewhat picturesquely refers to Orwellian (as per "1986" rewriting of history) and Stalinesque (as per show trials with false evidence) rewrites. He means to differentiate false memories which are formed with the interposition of post-experiential information from those where the information arrived in consciousness in a distorted form during the experience itself. In either case the active role of the mind in forming what we experience and remember is a prominent feature of what is happening.

Secondly, he discusses an illusion where the observer sees a red light in one position and a green light in a slightly different position a short time later but reports this experience as one in which the light moves and changes colour as it does so.[17] He asks us to consider the trajectory of the illusory light and determine what physical substrate could be the origin of the intermediate visual impressions. He concludes that these are filled in by consciousness to make the best possible sense of what has gone on between brain and world in terms of what usually happens around here.

He also mentions confabulation as occurs in various kinds of dementia and brain damage. Here we can consider the case of temporal lobe automatisms. These occur as a result of a seizure in which the body acts out a stereotyped pattern of activity resembling a voluntary action but the person is unconscious of what they are doing. Afterwards, if asked, the person may be confused about what has just happened or they may confabulate and give some spurious reason for their movements, such as "I guess I just thought the bed needed tidying" or "I'm always just going out to the kitchen to check on things". In these cases, we see the conscious mind responding to an implicit social demand for explanation by spinning a story about what has happened which bears no relation to the electrical storm that caused the activity. Normally the events have the form of an organized human act which one has shaped according to the categories of perception, thought and action that the human group around here has taught one to use. In the case of automatism, these acts are exhibited without the usual motives or intentions. Dennett summarizes as follows:[18]

subjects are unwitting creators of fiction, but to say that they are unwitting is to grant them that what they say is, or can be, an account of exactly how it seems to them.

If Dennett is correct, then a universal feature of human behaviour and conscious experience is that we make the best story we can out of a continuous stream of brain-world activity which does not in itself determine exactly what form that story will take. He is too quick, however, to call this fiction; as far as factual reports about consciously experienced events are concerned, the narrative (which is based on what happens between one's brain and the world) is "as good as it gets". We only use a word like "confabulation" or "illusion" when the judgments of other observers would significantly diverge from the experience of the subject. Notice that here the truth is relativized to the perspective of other thinkers. This is not surprising as the form of the story of our lived conscious experience depends on the concepts and meanings that we have available (from our social milieu) to deploy in making sense of our own activity. Thus the narrative that is lived human experience is shaped by the meaning-giving skills which are deployed by the human subject as a situated narrator. What we still have not got - or at least not to the satisfaction of certain philosophical die-hards - is an argument suggesting that one's conscious thought life determines what actually happens with one's body rather than just shaping the way that one experiences it. We need this aspect of the theory of action to be secure in order to have a chance of formulating a robust forensic style account of moral responsibility.

In fact the existence of automatism as a cause of coordinated patterns of human behaviour gives us a clue we can follow in this quest. An automatism, as I have noted, is a causal product of a state of electrical excitement in the brain. But so, on the physicalist account, is an action. So what is the essential (or metaphysical) difference between the two given that both are causal products of activity in the same brain? We might ask ourselves in the case of a voluntary action, "Why is this particular tract of electrical stuff even a candidate as a proper cause for an intended action rather than some other bodily manifestation of what is going on in the brain?" The answer has to be sought in the way that the content of the action arises as a psychologically explicable part of a person's narrative and thus in the way, that the neural events realize or form part of a set of action-shaping thoughts.

This answer is supported by the nervous mountaineer case in which it is clear that a genuine voluntary action has to take its place in the psychic economy in the right kind of way - the mountaineer has to let go intentionally. We have noted that "the right kind of way" for intentional action is not just a matter of causation by beliefs and desires; it is a matter of the relevant mental states being those I took as reasons to act in doing what I did. Taken together with our thoughts about extended actions, and our thoughts about the mismatch between the brain-world stream and the conscious stream, this feature does not sit well with the event-causing-event theory of the intent required for mens rea and is most realistically conceived of on a different model called the "identity structure" model.[19]

According to the identity structure model, an action occurs when a conscious conception guides my behaviour so that the behaviour becomes explicable as an expression of that conception. My walking to the door to go out is a tract of my activity structured or given form by my thought that I want to go out. As one reflects on it, this comes to seem like a very sensitive and realistic way to understand the relationship between ideas (or mental content) and action.

It is sensitive because it tracks my conscious states in the explanation of behaviour. Thus if, on the way to the door, I realise that the day outside is a lot colder than I originally thought it was I might stop and take an extra waistcoat. As I turn aside to the closet to get the waistcoat I am not doing anything straightforwardly explicable under the background "going to the door to go out". The original plan is not on hold but for the minute, a subplot has been conceived, taken over, and is controlling my behaviour, and the way I capture that fact is to mention the waistcoat. This is even more evident if, while walking into the office thinking about the day's work, I recall that there is a poorly laid flooring tile that I often trip over as I go in. The relatively automatic pursuit of my overall plan of walking into the office has now got a new subplot to be worked into it - scanning the ground for that pesky tile. If somebody approaches me and asks me to explain what I am doing, an adequate answer should include both elements: my entry to the office, and the possible glitch I am trying to avoid. Because this type of explanation focuses on the content that is currently consciously directing and giving form to my activity it is not only sensitive - it can cope with the subtle shifts - but also realistic in that it does not have me generating discrete mental causes or intentions for each chunk of my activity. What is more, it fits perfectly with a narrative view of consciousness and its relation to the stream of extra-conscious activity that we find going on seamlessly in the brain.[20]

The identity structure approach to action explanation allows us to focus directly on the state of mind or mens rea that informs an action.

So to summarize where we have got to?

Mens rea is critical in assessments of criminal and moral responsibility. The crucial element in mens rea is an intent to commit an action. If intent or an intention is identified with a proximal mental cause of an action then we seem led to trace a causal path from the act to events beneath or beyond the control of the agent (such as brain events and urges to act). However the proximal event account of intention looks defective. Instead we should attend to the implications of an account which stresses the role of mental content or thoughts in structuring behaviour.

We must now devote a moment's thought to mental content or thought and its relation to our agency and the actions we undertake.

The content of a thought reflects the way things would be in the world to make that thought true. I have argued in a number of places that mental content is structured by concepts and concepts are based on rules.[21] The rules govern the application of a particular concept to the world and its cognitive significance in relation to other concepts; thus, for example, the concept <gecko> is only properly applied to little critters of a certain kind and is properly linked (in one's thinking) to concepts like <vertebrate>, <reptile>, <lizard>, and so on. I have also argued (with Wittgenstein) that rules do not operate like elements of a causal transaction.[22] Thus if you teach me the rule governing the concept <gecko> it is up to me whether I learn it and follow it and thereby grasp the concept or whether I do not choose to learn the concept, understand the conditions in the real world on which it is based, and fit in to your practice. Of course, we bring it about in many and varied ways that our cognitive novices are disposed to follow the rules but we cannot causally compel them to. It isn't a "done deal" unless they go along with us. In fact nature itself heavily stacks the hand in our favour in this endeavour but from that we shape up what McDowell calls "second nature".[23]

But we need a little more here in relation to the cognitive significance attaching to the terms "thinker" and "agent" and therefore what follows from them. In fact the implications will get us to a significant conclusion about intention and responsibility. A rule follower, in order to adapt to the practice of others, must be able to control his or her behaviour in response to prescriptions (such as "Call this a gecko!"). Thus, to make a thinker, and thereby an agent who can structure his or her behaviour in the light of reasons to act thus and so, we take a developing human organism (who is naturally disposed to fit in with our usage in relation to a concept) and we

train them. This training process is well understood by Aristotle in relation to all sorts of rules that pervade human conduct and the skills required to follow them. We take our inexperienced novice who is not fully equipped by nature to act in a certain way (for instance, to treat his or her fellows with justice and consideration), we impose prescriptions, mix in a little guile (or what the Scots would call cozening), and the learner is equipped to do what previously he or she could not. This process results in a change in behaviour provided only that the individual plays along and then wants to go on making use of the rule-governed technique we have imparted.

In fact this Aristotelian account is remarkably close to a passage in Kant's discussion of freedom. Kant notices that the moral law is such that it can impose a requirement which is not conditioned by the prior nature of the agent but instead represents a conception of a law which the mind may or may not adopt as regulative for its dealings with the world. We could argue that the norms governing our thinking and the norms governing our action are not so different and transform our "natural" (in the sense of natural science) capacities to allow us to exploit techniques of thinking and acting which our species has developed as a collective adaptation to the world (in McDowell's terms this process creates in us a "second nature"). In his discussion of freedom, Kant imagines a young man who tells a malicious lie. He allows that the young man might have had a defective education, bad company, a vicious natural disposition, and be feckless; he even allows that there might have been other more proximate causes that help to explain the action. But he concludes that we can legitimately hold the young man responsible for his vicious act for the following reason: [24]

Our blame is based on a law of reason whereby we regard reason as a cause that irrespective of all the above mentioned empirical conditions could have determined and ought to have determined the agent to act otherwise.

The implication of the rule governed structure of cognition is that it comes about as a result of training through social interactions with other human beings. In this milieu the subject is consensually shaped in patterns of thought and behaviour by acquiring certain skills. The fact that it is skills of perceiving, thinking, and acting that are cognitively shaped and refined over time and that this is done consensually now allows us to directly address the issue of intention and responsibility.

Think for a moment of the rules of chess. Before I have been disciplined by the rules and have developed any mastery of them, I am relatively helpless if you sit me down at a chess board with a set of pieces. I have not, as it were, any power to act in the domain of human endeavour that is structured by the rules of chess. The more I acquire a working knowledge of the rules the more strength to my arm, as it were. I become empowered or able to act more and more in a way that expresses my own strategies and reasoning (rather than just in response to the moves of my opponent). It is the same with thought and action. The more I master the rule-governed skills which allow thinking to structure my action, the more empowered I am to devise and pursue my own projects for my own reasons. Thus, as the good book says "The truth shall make you free". We could paraphrase as follows "Mastery of the rule governed relationship between thought and the actual world in which we live and move and have our being will make you able to understand and act according to the dictates of your own reasoning" (what this gains in explication, however, it more than loses in rhetoric).

In fact, when we pursue the way that competent mastery of the rules governing thought empowers an individual we can illuminate the issue of intent as it relates to the character and culpability of the agent in a human interaction.

To act I must allow a rule to structure my behaviour, whether I do so emerges out of my psychological state at the time of the act. But we might insist, is not this state merely a causal product of events leading up to it as they affect brain processes? This view is hard to defend. In fact the complexity of the brain is such that the rules of chaos theory look to have some purchase there. Dennett describes the brain as being like a Joycean machine (invoking in this phrase "the meandering sequence of conscious mental contents famously depicted by James Joyce in his novels").[25] He argues that the thoughts and actions that emerge in the behaviour of the individual are thrown up by a relatively chaotic process in which patterns of excitation in the brain jostle for control space in the executor systems. If he is right the prospects are bleak for a scientific psychology which is grounded in events of this type and is therefore firmly based in brain science. But if the descriptions and regularities revealed by brain science do not reveal why a particular action is exhibited by a particular agent on a particular occasion then two implications quickly follow:

1. we have lost a secure footing for causal accounts of human behaviour;
2. we must look elsewhere for explanation.

A good first pass at the second task would be to try and understand which thoughts and reasons for acting predominate in the mind of the agent at a given point of time. This, I would claim, is a joint product of, among other things, the life skills of the agent and his or her moral dispositions as they shape the conscious narrative of the individual concerned. The action is therefore explicable on the basis of the agent's life story or self-narrative and the influences that operate there.

It is clear that some people do not choose to follow the rules and if they are rules that would normally become "second nature" to us; I must have a reason for not following a rule that gives me an advantage in life. For instance, harking back to the cognitive training of an earlier age, were I do decide not to learn number facts like 5+7=l2 there would usually have been a reason and perhaps, updating the scenario slightly, a school counsellor would set out to find that reason. It may be that I did not have adequately functioning cognitive equipment and was unable to do such tasks or it may be that I did not want to learn at that point. This goes on throughout life. Sometimes perfectly competent thinkers violate the rules of thought and they usually do so for effect: they coin a metaphor; have a creative and original thought, say something outrageous, or make a political statement. In each case the deliberate violation of the rules makes sense within a suitably sensitive life history of the person involved.

It is the fact that the rules do not causally necessitate rule-following performances that allows this to happen and the explanation of its happening is to be found in the (more or less) integrated narrative that is spun by the person concerned. The ability to call upon concepts and patterns of action and apply then to whatever is going on in one's life as and when one wants is so basic to human consciousness that we take it for granted. It is an ability which we gradually master as we learn to be human in thought and action and shape what we do by following a path dictated by our wants and desires. But the role of reason in this way of going on has profound implications for a theory of intentionality and moral responsibility.

We now have a framework in place which allows us to address the question with which we began. Let me recap.

First, we can say that any action is explicably related to the life history in which it arises but in a way that essentially depends on regarding the agent as a rule-follower or thinker using socially mediated techniques to structure his or her behaviour.

Secondly, this distances the individual from a causally compelled device and suggests that our conception of intent should not be modeled on the idea of a material cause. In support of this argument I have provided reasons why intent should not be seen that way and cast doubt on neuroscientific data which seemed to suggest that intentions were neural events preceding action.

Thirdly, I have argued that rule-following (as distinct from acting on the basis of brain states with a causal history) is a prescriptively governed activity for a human being and that whether or not the rules are followed depends on the interests of the person concerned and on their choice to use a certain skill on a certain occasion. When I determine to act according to a certain conception of what is going on in the world and what I want out of a situation, I am acting intentionally and structuring my behaviour according to rule governed techniques that I have mastered.

Therefore I have the ability to act and, insofar as I have that ability, I have the ability to control my action. For that reason moral responsibility and freedom of the will are best linked to the rational control over behaviour (its ability to be shaped by one's reasons for acting).

This understanding of human action is not conceptually compatible with the idea of mechanistic or subhuman causality conceived of in terms of the mental states and forces surging within one and driving behaviour this way and that. This is an understanding in terms of "spontaneity" as Kant would use the term - the ability to be governed by reasons and one's rational determination to act on them.

We must therefore side with folk (or the man on the Clapham omnibus) when facing up to the claims of science to have explained and grounded psychology in brain science or any other causally deterministic mechanism. Brain science indeed tells us a lot about people and the kinds of things they do but it does not explain their actions on particular occasions when they are acting in accordance with their own plans and intentions. Likening human behaviour to that of subhuman animals also leaves out this crucial ingredient. A human action, whether verbal or of a more robust type, can only be explained by examining the meanings that a person has taken on board to shape both his or her life story and how he or she relates to others that enter into that life story. Faced with this kind of fact, most of us are working on familiar turf. Since we were very young, we have all been living with and making judgments about responsibility and the praise and blame of individuals in relation to facts of this sort. It is precisely in relation to such facts that "the man on the Clapham omnibus" can say as well as anyone else including a forensic scientist or neuropsychologist whether folk like Joachim could or should have done differently when he killed Herman.

There might be a neurological Joycean machine in each of us, and there might be shifting and even identifiable patterns of brain activity associated with our activities of thinking and acting, but, be that as it may, we have developed a very sophisticated system which allows us to explain and to some extent predict the psychological moves made by human beings. The application of this knowledge by any individual to any action is limited by that individual's experience and understanding of the intricate and interwoven patterns of human thoughts, feelings, and relationships within which our actions take shape. As we heighten our understanding of this complex milieu, we will also heighten our understanding of the subtleties of human intentions and actions but this knowledge owes almost nothing to neuroscientists. What is more, it should not be befuddled by spurious causal stories about reasons for acting and criminal behaviour that arise in subhuman ways (for instance from a "crocodile brain"). To the extent that one can think (i.e. carry out a reasoned course of action), one acts with intent and is responsible for one's thought and action. The knowledge that allows us to understand human actions is common or "folk" knowledge; it is deeply in debt to figures like Euripides, George Eliot, Henry James (even more than his brother William), and Janet Frame. These are the thinkers who have granted us insights into the tapestry of human life in such a way as to illuminate the ideas of responsibility and culpability surrounding our actions in general and a criminal act in particular.

Jurisprudence, in its determination to become scientific about human agency must be careful about the epistemic partners it chooses in this project. Suitable partners are not to be found in half-baked ideas about the causal determinants of human behaviour based in spurious psychology and neuroscience. If philosophy can do little else for jurisprudence it can at least clear up the ideological weeds fouling that bit of ground. I have indicated where I would look for suitable guidance in the task of adjudicating moral responsibility, and, although the occasional insightful psychologist may qualify as an expert in such matters, it will usually not be on the basis of a scientific study of the human brain.

[*] Lecture delivered by Professor G Gillett at Christchurch on 7 June, 2001.

[1] 6.8.2001.

[2] G Gillett, The mind and its discontents (Oxford: University Press, 1999).

[3] A system of Logic- Rationcinative and inductive ( Toronto, University of Toronto Press, 1974; originally published 1843), vols 1 & 2.

[4] J Bishop, Natural agency (Cambridge: University Press, 1989), p 11.

[5] P Churchland, for instance, lays out the varieties of this view that are current in Matter and Consciousness (Cambridge, Mass., MIT Press, 1986).

[6] D Davidson, Essays on actions and events (Oxford, Clarendon, 1980), p79.

[7] J Kirn, "Explanatory realism, causal realism, and explanatory exclusion" in Explanation (Oxford, Oxford University Press, D Hillel Ruben ed, 1993), pp 228-245.

[8] S Spence, "Free will in the light of neuropsychiatry", Philosophy, Psychiatry, and Psychology, 1996, 3, 75-90.

[9] B Libet "Unconscious cerebral initiative and the role of conscious will in voluntary action", The Behavioural and Brain Sciences, 1985, 8, 529-566.

[10] S Hampshire, "Some difficulties in knowing" in Philosophy as it is ( London, Penguin, Honderich and Bumyeat eds, 1969), p 74.

[11] L Wittgenstein, Philosophical Investigations (Oxford, Blackwell, tr. GEM. Anscombe, 1953), #255.

[12] 1 have suggested an alternative view in The Mind and its Discontents (op cit n 2).

[13] Op cit n 10.

[14] I Kant, The Critique of pure reason ( London, McMillan, tr. N.Kemp Smith, 1789 [1929]), p 497.

[15] DC Dennett, Consciousness Explained ( London, Penguin Press, 1991).

[16] Memory Distortion (Cambridge, Mass., Harvard University Press, DL Schachter ed, 1995) .

[17] Op cit n 15, at p 114-115.

[18] Ibid at 94.

[19] RR Vallacher & DM Wegner, "'What do people think they're doing? Action identification and human behaviour", Psychological Review, 1987, 94: 3-15.

[20] This is Karl Jasper's term for activity which is not conscious because it is physiological or part of the unconscious mind (K Jaspers, "Causal and meaningful connexions between life history and psychosis" in Themes and variations in European psychiatry (Bristol: John Wright and Sons, SR.Hirsch & M.Shepherd eds, 1913 [1974]).

[21] G Gillett, Representation Meaning & Thought (Oxford: Clarendon, 1992).

[22] G Gillett, "Free will and mental content", Ratio, 1993, VI.2, 89-108.

[23] I McDowell, Mind and World (Cambridge, Mass., Harvard University Press, 1994).

[24] I Kant, The Critique of pure reason ( London, McMillan, tr. N.Kemp Smith, 1789 [1929]), p 477.

[25] Op cit n 15, at 214.

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback