Abstract: An important research program in cognitive neuroscience and moral psychology seeks to explain our moral judgments as the result of often unconscious moral beliefs which are “hard-wired” in our brain, and which we apply to the cases we are presented with. If this research program succeeds, we can identify what Michael Gazzaniga describes as “a sort of ethics, built into our brain”, which tells us both which actions are permissible and which are not, and under which conditions people should be held responsible and punished for performing impermissible actions. In short, our “hard-wired” ethics covers broadly the same topics as the criminal code, which also states which actions are impermissible and under what conditions people should be held responsible. What, if anything, can we make of this analogy?
I will examine what I call the “’brain-based law’-hypothesis”, according to which the criminal law should, as far as possible, be made to match our “hard-wired” moral code, so that what we intuitively take to be wrong is also prohibited by law (at least within the domain of “core moral wrongs”, such as the use of violence, which is a central research topic in this field of moral psychology). While this hypothesis might appear to be a clear instance of the naturalistic fallacy, it is worthwhile to see what truth, if any, there might be to it, for at least two reasons. First, while the “brain-based law”-hypothesis is seldom explicitly defended, I believe that it motivates much research on the moral psychology of crime and punishment. Next, the “brain-based law”-hypothesis can provide an interesting way of operationalizing some important trends in the philosophy of punishment, in particular the neo-Strawsonian idea that a theory of punishment must ultimately be based in our actual practices and reactive attitudes. In the end, I will argue that the “brain-based law”-hypothesis should be rejected; showing why it should be rejected, and what elements of the hypothesis we can retain, is also a way of showing how the trends in the philosophy of punishment just alluded to should and can be operationalized.
Dr Jakob Elster has a PhD in Philosophy from the University of Oslo and is currently a Postdoctoral Fellow at the Ethics Programme and affiliated with the Centre for the Study of Mind in Nature, both at the University of Oslo. Among his research interests are: the role and status of moral intuitions; the methodology of moral philosophy; the structure of moral theories; neuroscience and the law; bioethics, in particular the legitimacy of bioethical legislation, and the ethics of choosing children and their traits. He recently published the article “Procreative Beneficence – Cui Bono?” in Bioethics