A neuroscientific perspective on cognitive and volitional impairment in criminal irresponsibility assessments: a case for a capacity-based approach

Abstract

The law remains reluctant of joining forces with neuroscience to better understand human behaviour despite the fact that “preliminary biological explanations” exist for a number of relevant phenomena (Garland & Glimcher, 2006, p. 131). Contemporary brain imaging techniques have enabled the study of law-related notions such as consciousness, morality and intent, to name a few (Gazzaniga, 2008, p. 412). Others argue that neuroscience is not advanced enough to uncover mental content that is pertinent to the law (Morse, 2011, pp. 849-850). It has also been suggested that even if it were possible to prove a precise correlation between the requirements for criminal responsibility and certain neural patterns, these patterns could only amount to “evidentiary support for the assertion that the criterion in question was in fact satisfied at the time of the crime” (Morse, 2006, p. 399). Plausibly, these claims do not warrant ignorance towards existing neuroscientific research, which is not insignificant in volume. Moreover, it is hard to see why the society as a whole would not benefit from legal determinations which are as rigorous and precise as possible. It could be argued that every insight – whether neuroscientific, sociological or evolutionary, for example – provides a “reality” of human behaviour from a distinct, but complementary point of view.