A Neurological Foundation for Legal Free Will

Abstract

Neuroscience provides a new lens to examine the concept of freedom underlying moral and legal responsibility. The difference between an eye blink and an eye wink, once unknowable, may now be studied with emerging technologies from neuroscience. Recent scholarship integrating neuroscience into debates over moral and legal responsibility, however, largely concede that criminal law must fundamentally alter its view of human actions and of human behavior and restructure its concept of responsibility to conform to these new technologies. This paper demonstrates that, to the contrary, research into the neural processes involved in choice, and cutting edge neuro-technology, such as brain-machine interface, may offer new insights into human agency and responsibility. These insights bolster existing theories of freedom of choice and freedom of action, lending credence to concept of agency underlying both. The grounding neuroscience offers to agency-based concepts of freedom confers an immediate benefit to institutions built upon presumptions of human agency, but thin in their existing defense. This is particularly true for the concept of legal free will underpinning responsibility in criminal law. Legal free will has traditionally relied upon consequentialist or compatibilist justifications for responsibility, rather than a theoretically stronger account of freedom. Rather than eschewing theoretical free will as unnecessary to criminal responsibility, legal free will could embrace advances in neuroscience to supplement a theory of freedom that comports with moral responsibility and provide it with a more robust foundation.