Neurolaw and Punishment: a Naturalistic and Humanitarian View, and its Overlooked Perils
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AbstractNeurolaw is the approach that attempts to apply recent progress in neuroscience to the classical conceptions of law, often with the aim of pushing legal institutions (especially in criminal law) to be more in line with scientific knowledge. It is essentially a process of naturalization of the law, which also applies to punishment, its aims, its methods of implementation and its justification.
A relevant line of naturalization of criminal law relies on developments in neuroscience so as to try to prove that (if not always, at least most times) our actions are not free according to the classic definition of freedom – where the agent is capable of knowingly, voluntarily and consciously undertaking a course of action by choosing between alternatives. According to the proponents of this view, one cannot but follow the logical sequence deriving from the experimental data, which leads to the unavoidable pragmatic conclusion of choosing a consequentialistic kind of law and punishment.
Consequentialist punishment is deemed to be more humane because it is not afflictive and is only targeted to protect society. But the fact that the charged person is regarded as more mad than bad, so to speak, turns her into a sort of “broken machine”, with the risk of legitimizing preventive treatments or ones of indefinite duration. The objections to this approach are therefore related to the gaps of knowledge we still have, to the risks of “political” abuse, and to the Strawsonian line of thought for which we cannot treat our fellow human beings as broken machines to be repaired, depriving them of their nature of free and rational agents (except in exceptional and rare cases). I suggest a more nuanced assessment of these possible developments and defend a moderate form of retributivism.