A group of fifteen neuroscientists, philosophers and lawyers met under the auspices of the Network at Drynachan Lodge near Inverness in Scotland to discuss the issue of responsibility as understood by modern neuroscience on the one hand and our legal system on the other. Drynachan is the shooting lodge of the Cawdor family and is situated in a remote site on the banks of the River Findhorn. As such it provided a perfect retreat for reflection on our theme, and our proceedings were made all the more congenial by the warm and generous hospitality of Countess Angelika Cawdor.
Our first foray into this field was our May Dialogue of 1994 entitled Mind, Behaviour and the Law. Here Peter Fenwick and Sandy McCall Smith, now professor of law and medical ethics at Edinburgh, laid out the groundwork on which this seminar was based. With his extensive court experience, Peter was in a good position to open the conference and took us back to an incident at the Old Bailey when the judge asked him to come back the following day with his definition of the mind. Basic to the notion of responsibility in a legal context is intention: the guilty mind (mens rea) is held responsible for actions, but is there such a thing as a guilty brain? Here we have two discourses of mind and brain, the essential question being the relationship between these. In cases where the mind is absent or innocent, as in sleepwalking, the defence is upheld. More marginal, however, are instances where it can be argued that a high dose of a drug such as valium may adversely affect impulse control.
This picture suggested a spectrum of both consciousness and responsibility, a point taken up by Professor Susan Greenfield of Oxford. She argued for the basic plasticity of the brain, that more experience leads to more individuality and that consciousness may be likened to a light in a room that may be brighter or dimmer depending on a person’s state. Interaction with the environment is a crucial factor, represented as a dialogue involving constant interception and interpretation. There is thus no simple factor in delineating responsibility. Professor Derek Bryce-Smith from Reading contributed a biochemical perspective with his report of chemical and nutritional influences on brains and behaviour. He has been involved in studies of young delinquents, the vast majority of whom are hyperactive. When treated for various dietary deficiencies, lead overload and zinc depletion, behaviour can show dramatic improvements. He stressed that dietary factors could therefore play a significant role while maintaining that we need to adopt a multi-factorial approach.
Sandy McCall Smith and Professor Bill Fulford from Warwick tried to get behind human action. Most theories of responsibility are based on the notion of choice reflected in the deliberate acts of agents. In fact, Sandy pointed out, much human action does not fit this pattern, and is done either unthinkingly, spontaneously, or even, in some extreme cases, in dissociative or extreme states. Some acts are not fully chosen in the sense that they may derive from external coercion or pressure, while much action is derived from habit and custom. Character, however, was an important consideration since a judgement can be made about whether an act was in our out of character, thus providing a wider context for discussion. He felt that the retributive model of punishment had failed and that education should include the development of moral imagination and sensitivity. Bill asked about the relationship between legal and moral responsibility, looking at various cases involving delusional states, including that of guilt. Thus the idea of graded responsibility emerged again. In practice, grading only emerges after sentencing, and the severity of the sentence is affected by the judge’s view of the extent of responsibility. Responsibility is required as a justification for any punishment, which can then be seen as a just desert meted out for a culpable act.
The next session looked at freedom of the will and the problem of determinism. Dr. Mary Midgley pointed out that the word determinism can be used in either a personal or impersonal sense. We are inclined, other things being equal, to take the word in its personal sense, so that we interpret it to mean that our actions are controlled by external forces from outside ourselves. She argued that the notion of determinism itself is in a mess and actually makes no sense. An example from Richard Dawkins is the transfer of autonomy to small parts of cells inside human bodies, which are then treated as if they were independent designers and users of the wholes to which they belong. Mary also criticized Colin Blakemore’s mechanistic understanding of the brain and robustly insisted that epiphenomenalism was a contradiction: ‘the people who promote it show that they don’t believe in it themselves. If they believed in it, they would certainly not go to the trouble of composing arguments about it’.
Justice Dr. David Hodgson came to the conference all the way from the New South Wales Supreme Court. He felt that the burden of proof was to show that we did not have free will. Intention is clearly related to the voluntary, and cannot be written off as an illusion. The basis of causation lies in reasons and choices, and alternatives are generally open. Disadvantages may make it hard to arrive at a right choice, thus introducing the question of the threshold of responsibility. Graham Martin from Edinburgh introduced a continental view by bringing in Bergson’s analysis of time and causality, showing that there is an assymmetry of the closed past and open future, as well as indicating the shortcomings of abstraction which artificially chops time up into segments. Our discussions moved us towards the use of the word freedom rather than the expression free will. We also considered the role of the social in defining consciousness and the importance of the subconscious.
Professor Hilary Rose from London reminded us of some of the implicit context of our discourse. Anglo-Saxon capitalism, she maintained, has unduly accentuated individualism; feminist understandings have yet to percolate generally into the culture; much of the consciousness literature is concerned with cognition rather than emotionality; and general notions of responsibility are gendered – we have differing expectations of men and women. An interesting line emerging from this presentation was whether the adverserial court process itself was not a kind of boy’s game.