Boston, MA—"Should we ditch the concept of personal responsibility and construct the therapeutic state?," asked Michael Shapiro, a University of Southern California law professor.
Shapiro posed the question during a panel discussion devoted to "Responsibility and the Law," on the second day of the Our Brains and Us conference at MIT. Do any of the findings of contemporary neuroscience force us to ditch the concept of personal responsibility? Shapiro argued they don't. Why? Because we already knew that we are embedded in a network of physical causes from which our behavior arises. Neuroscience may give us a better understanding of the physical bases of causes in our brains, but it does not change the fact that our behavior has always been caused.
Shapiro recognized that many people naively believe that free will, and thus personal responsibility and moral culpability, depends on the notion that people are somehow uncaused causers. But can someone really be held responsible in such a contra-causal world? Not really. As psychologist and philosopher William James put it: "If a 'free' act be a sheer novelty that comes not from me, the previous me, but ex nihilo, and simply tacks itself on to me, how can I, the previous I, be responsible?"
Shapiro maintained, "The endurance of any coherent notion of freedom and responsibility means that you can't believe in a contra-causal world." Shapiro acknowledged the philosophical discomfort many (perhaps most) people feel with the notion of determinism, that all events, including our choices are the result of the operation of natural and physical laws. They wonder how we can hold a person responsible for her actions if she could not have done other than she did? (As the James quotation illustrates, quantum indeterminism doesn't help matters on this score.) If all actions are caused, of what does moral freedom consist?
Generally, we regard people as acting freely when they act on their own intentions and for their own reasons without coercion. Is someone stealing that wallet because someone else is holding a gun to his head? If not, we treat the thief as a moral agent whom we hold responsible for his actions. Under retributive theories of justice, moral agents deserve punishment (retribution) when they interfere with the protected freedom of others to pursue their activities and projects, e.g., by stealing, murdering, raping. Once their punishment ends, they are treated as moral agents who are regarded as being able to conform to moral and legal strictures and allowed to enjoy the same freedoms that other moral agents enjoy. Moral agency implies a respect for persons and their rights. The legal system can restrain their freedom only after they have been found to have failed to conform to moral and legal norms.
But what if we give into the philosophical discomfort and conclude that we really can't hold people morally responsible for their actions since they are completely determined by a combination of their genes and their environment? We would still have to do something to protect ourselves from violent and antisocial people. "We could develop alternative social controls—some sort of system of civil commitment," notes Rebecca Dresser, a professor of law and medical ethics at Washington University in St. Louis participating on a panel considering "Moral Agency and Free Will." But would this really be an improvement? There are reasons to doubt it.
The rationale for limiting people's freedom based on their antisocial activities would no longer be based on the notion that they are morally culpable, but on the idea that they are sick. The state would be in charge of administering therapies rather than punishments. Consider how the current system of civil commitment operates–people who are excused of a committing a crime on the grounds that they couldn't help it don't walk away scot-free. Instead they enter the forensic medical system to which they can be confined until it is determined that they no longer pose a danger to society. This means that their freedom can be restricted indefinitely, whereas had they been treated as moral agents who have the power of choice, their punishment generally would have had a fixed term.
More worrying is the thought that jettisoning moral responsibility opens up the possibility of prospective intervention. For example, it's not too far of a stretch to imagine a future no-fault therapeutic society in which people who had not yet committed a crime but who have brain scans indicating higher risk for antisocial behavior might be restrained in various ways. Perhaps people with suspect brain scans might be assigned to counselors (parole officers) to whom they would have to report periodically. Or as neuropharmaceuticals improve, perhaps they would be required to take medications to modify their brain states in order to retain their bodily liberty. If they refused counseling or drugs (further evidence of their illness no doubt), they could be confined for the protection of society.
In the therapeutic state, new-fangled therapies for brain defects will be chiefly distinguished from old-fashioned punishments for moral faults by the fact that therapies, unlike most punishments, can last forever.