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A recent Italian judicial ruling sparked a wide-ranging debate also at the international level (“Lighter sentence for murderer with 'bad genes'”, Nature, http://www.nature.com/news/2009/091030/full/news.2009.1050.html?s=news_rss).
In September 2009, the Court of Assizes of Appeals of Trieste reduced a murder convict’s sentence and motivated its ruling in part because the defense presented expert testimony showing the convict had an altered chromosome profile, which predisposes the bearer to violence under specific existential circumstances. This is the first sentence in Europe in which an alleged genetic predisposition has been accepted as an extenuating circumstance.
During the previous proceedings of the first instance, although the defendant’s guilt was not in question, his competency to stand trial was evaluated, as he had been a longtime patient of a mental health center. As is often the case, however, expert evaluations did not reach the same conclusion: while the court and the defense’s experts had found the defendant wholly unable to distinguish right from wrong (on the basis of a diagnosis of “psychotic delusion” along with “impulsive personality disorder”), the expert for the prosecution felt the defendant’s mental disorder only “hindered” his ability to distinguish right from wrong – so that such an ability was diminished but not destroyed.
The court agreed with the prosecution’s expert and ruled the defendant only partly incapable of distinguishing right from wrong, and declined to apply the maximum reduction of sentence (up to one-third) for partial insanity.
After the sentence of the proceedings of first instance was appealed, the Court of Appeals arranged for expert testimony by two renowned neuroscientists (Giuseppe Sartori and Pietro Pietrini), which included a genetic test indicating that the forty-year-old defendant’s DNA showed “polymorphisms” (gene variants) – something that, on the basis of many studies, has been shown to significantly increase the risk of developing aggressive-impulsive behaviors”. In particular, “the low-activity variant of the MAOA allele (MAOA-L) may make the bearer more inclined to manifest aggressive behavior when provoked or socially excluded”. Genetic vulnerability is heightened in cases in which “the individual grew up in an unfavorable family context and was exposed, especially in the first decades of life, to unfavorable, psychologically traumatic, or negative environmental factors”. The Court of Assizes of Appeals cited “the extent of the mental deficit uncovered by the new findings of the genetic tests” to establish the defendant’s partial insanity, and thereby reduced his sentence.
It should noted that in this case no direct link between the genetic-cerebral profile and the crime was claimed. What is interesting, however, is the potential consequences of accepting genetic evidence in establishing that the defendant's deficit was as one of the causes of his mental illness (an extenuating circumstance for to the Italian law) – something that previously could only be assessed by appealing to psychological tests.
This ruling opens the door to considering the agents' freedom of choice and action, and consequently the agents' responsibility for them, as something that may manifest itself in very variable quantities according to what the individuals' biological make-ups and external circumstances are – something that looks like a sort of continuum that is very different from the very limited range of possibilities that are available when the evaluation of the amount of accountability is established on psychological grounds only. In this light, none seems to be entirely “free” or entirely unfree. There are instead many variable and fuzzy conditions to be considered, and establishing how much one acts out of free will amounts to determining where one's particular choices and actions should be put in this continuous range. This is of course a very important issue that deserves in-depth study, because those who are seen as “not free enough” – that is, as unable to adequately distinguish right from wrong or, in a literal translation of the wording used in the Italian penal code, “incapable of understanding or free will” – should not be held responsible for their actions and consequently (at least for any non-ferociously utilitarian views of punishment) left unpunished.
From the current issue of Neuroethics:
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Here is an interesting case of how broad the influence of cognitive studies can be on our lives. In general terms, conventional wisdom holds that religion causes people to see the world in different ways. Now some recent studies seem to show that this holds true in a literal sense as well. The consequences of that are as interesting but also potentially difficult to manage (both in social and in legal terms). A groups of researchers from the University of Leiden has argued that “Dutch Calvinists and atheists, brought up in the same country and culture and controlled for race, intelligence, sex, and age, differ with respect to the way they attend to and process the global and local features of complex visual stimuli: Calvinists attend less to global aspects of perceived events, which fits with the idea that people's attentional processing style reflects possible biases rewarded by their religious belief system” (L.S. Colzato et al., 2008, Losing the Big Picture: How Religion May Control Visual Attention, PLoS ONE 3(11): e3679. doi:10.1371/journal.pone.0003679). More recently, a larger group of scholars has broadened the scope of this research in a study that is forthcoming in Cognition (L.S. Colzato et al., 2010, God: Do I have your attention?,
After stating that “religion is commonly defined as a set of rules, developed as part of a culture”, they provide evidence that “practice in following these rules systematically changes the way people attend to visual stimuli, as indicated by the individual sizes of the global precedence effect (better performance to global than to local features)”. Colzato and colleagues claim that “this effect is significantly
reduced in Calvinism, a religion emphasizing individual responsibility, and increased in Catholicism and Judaism, religions emphasizing social solidarity”. They also “show that this effect is long-lasting (still affecting baptized atheists) and that its size systematically varies as a function of the amount and strictness of religious practices. These findings suggest that religious practice induces particular cognitive-control styles that induce chronic, directional biases in the control of visual attention”.
Now, assuming that this claim will be confirmed, let’s consider the issue of eyewitness testimony in a law court. In certain cases, whether the defendants is quitted or sentenced may hinge on little details of the eyewitness account such as, for example, the floral motif of a colorful shirt, which the witness may have briefly glimpsed. Such a case is similar to that of the experiment discussed in the above mentioned article : if an eyewitness has little time to register the global and local features of complex visual stimuli, individual recognition biases and predispositions derived from her religious background may emerge. However, asking eyewitnesses about their religion, and whether they practice it actively, may of course appear a politically incorrect question; and, prima facie, it may appear irrelevant if the issue is that determining if they have briefly and casually met the defendant. Yet, on the basis of these studies, a lawyer could claim in court that a Catholic eyewitness should generally be considered not very reliable, or at least less reliable than other potential eyewitnesses, with regard to little details such as a shirts pattern. And if there were two eyewitnesses of two different religions, their reliability, ceteris paribus, could be questioned, or put in a hierarchy, on the basis of their faith. Indeed, the above mentioned article claims that a devout Calvinist is generally more attuned to details that a Catholic. In other words, in virtue of these cognitive studies, a subjective matter such as one's religious faith or lack of that, which is usually held irrelevant in most judicial cases, may become a relevant issue to be reckoned with. Or, at least it is possible that in the near future attorneys want to be able to take these factors into account when assessing eyewitness testimonies.
From the current issue of Neuroethics:
Reimer (Neuroethics 2008) believes that how we use language to characterize psychopathy may affect our judgments of moral responsibility. If we say a psychopath has a disorder we may reduce their responsibility for moral failure. If we say a psychopath is merely different, we may not reduce their responsibility. Vincent (Neuroethics 2008) argues that if this were the case, a diagnosis of disorder would be both necessary and sufficient to reduce the responsibility of some agent for moral failure. Vincent presents two examples to suggest that a disorder is neither necessary nor sufficient to exculpate an individual for moral failure: childhood and hypomania. Vincent suggests instead that our judgments of moral responsibility ought to be based on the individual’s capacity for moral agency. I will side with Vincent in this debate, but argue that the example she uses, hypomania, does not work. I will argue that a diagnosis of hypomania, part of Bipolar II Disorder, is sufficient to exculpate an individual for some moral failure. This is because there are responsibility-relevant capacities missing: the capacities for self-awareness and to control ones abilities. Without these capacities, the individual is not a responsible moral agent. Vincent will need to provide an alternative example to show that the presence of a disorder is not sufficient to exculpate an individual for moral failure. Whilst our use of language is important, that use reflects our judgments of the individual’s capacities for moral agency. Responsibilities are determined not only by capacities, but by the right kind of capacities, and this should be reflected in our moral judgments, and our use of language.
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As said in the previous post, in their “In Bad Taste: Evidence for the Oral Origins of Moral Disgust”, Chapman et al. claim that “immorality elicits the same disgust as disease vectors and bad tastes” (Chapman et al., 1222). But what does the term “same disgust” mean here? When one is in front of a kind of food and one does not like pistachios, one may certainly activate the upper lip muscle region of the face in an expression of disgust -- and that would be all. But when one is faced with a situation that one perceive as morally repugnant, besides raising her upper lip, one will also feel that the situation is wrong. This is a normative component that, though essential in the moral reaction, is not present in gustatory distaste (it is not that I think that people who like pistachios are wrong or that it is good that I do not like them). Therefore moral disgust has an essential normative component that is not present in the gustatory disgust. According to Leibniz’s law, they cannot be considered as identical; they are not the same disgust.
The difference between moral and gustatory disgust is also clear when we consider that in the case of moral disgust one should be ready, if requested, to offer reasons in favor of – i.e. justify – his or her moral views. Of course, the reasons one can offer for one’s moral view are sometimes mere post-hoc rationalizations; what is important, however, is that we certainly recognize the legitimacy of the question, “Why, in your view, is this action (or situation or statement) wrong (or right)?” This clearly does not happen in the case of gustatory distaste. If we asked a person why she doesn’t like pistachios, she would not think that the question was a good one.
But there is also another reason, and a more important one, for suspecting that the main claim of this article is much less relevant than argued. According to Chapman et al., when we are in front of a morally relevant situation, our physiological reaction of disgust goes together with our having a moral attitude. This, however, is wrong, since in assuming a moral attitude, we can (at least in principle) detach ourselves from our instinctive and immediate reactions. That is, the possibility of detachment from our instinctive reactions in morally relevant situations is a necessary condition for morality – and certainly a crucial one. Another example can help us in understanding this point.
Let’s imagine that John is a person who grew up in a bigoted environment and was taught racist ethics – one based on the idea that segregation is good and that one should avoid contact with people of different skin-color. Recently, however, John has become a convinced anti-racist, even if, every now and then, he still has to fight in order to avoid the effects of his education that conditioned his behavior. One day, while walking down a street, John encounters a wounded man who asks for help. The man is bleeding, is obviously not dangerous but certainly needs to be seen by a doctor; he, however, belongs to a different ethnic group from John’s. So John has an instinctive attitude of repugnance – that is, of “moral disgust” – and rises his lips. However, John now believes in a moral system in which there is no place for racist values. So, as soon as he realizes that his old racist education is conditioning him, he makes a rational effort to conquer his repugnance; that is, he forces himself to help the man, notwithstanding his previous instinctive repugnance to do so, because he knows this is the right thing to do. This proves that the facial expressions of disgust do not necessarily go together with our moral attitudes. In any morally relevant situation, we need the ability to detach ourselves from our instinctive reactions in order to evaluate whether they are morally acceptable. Of course, very often they are (in those cases the moral detachment will confirm the instinctive reactions); but this does not happen necessarily. The connection between moral attitudes and physiological reactions, therefore, is a very extrinsic one: we could even image a person who is moral because she always detaches herself from her bad instincts.
Finally, a more general perplexity. As is very common nowadays, Chapman et al. take the “ultimatum game” as the prototype of the moral situation when the agents’ reactions to that game is taken as the prototype of our moral attitudes. This how the ultimatum game is defined by Wikipedia:
The ultimatum game is often played in economic experiments in which two players interact to decide how to divide a sum of money that is given to them. The first player proposes how to divide the sum between the two players, and the second player can either accept or reject this proposal. If the second player rejects, neither player receives anything. If the second player accepts, the money is split according to the proposal. The game is played only once so that reciprocation is not an issue.
The experimental setting of the ultimatum game may certainly be interesting for studying practical rationality or the faults of the Expected Utility Theory, but it is too artificial to be a good example of a real moral situation – and even less to be the prototype of all moral situations. Moreover, it does not involve moral considerations only, and perhaps they are not even central, since other factors are crucially at stake in the reactions of the subjects to unfair distributions of money (for example, considerations of instrumental rationality or the peculiar mental setting caused in the subjects by the awareness that they are part of a scientific experiment, witnessed and evaluated by scientists). In any case, it seems very doubtful that general conclusions about moral repulsion may be drawn from such a specific and unnatural situation.
Our conclusion is that Chapman et al.’s evolutionary hypothesis may have something interesting to say as to the enabling of biological conditions of morality – something that may contribute to an explanation of how our ancestors evolved in order for us to be biologically able to assume the moral perspective. This does not mean, however, that such an evolutionary story is relevant for explaining morality as such and even less for assessing the truth of emotivism as a meta-ethical theory.
We have been invited to contribute to this blog as the authors of the article “Not so fast. On Some Bold Neuroscientific Claims Concerning Human Agency”, recently published in “Neuroethics” (http://www.springerlink.com/content/761q55v204473303/fulltext.pdf). The article claims that too often very ambitious conclusions that in fact are conceptually and/or factually unjustified are drawn from the findings of neuroscience with regard to the issue of human agency. In general terms, this is old news for the readers of this excellent website. However, our article deals with some specific aspects connected with the idea that normativity – i.e., what we should or ought to do and how we should evaluate things – can be reduced to, or fully explained by, the empirical mechanisms studied by experimental science. Indeed, the transition from the workings of our brain to moral and rational norms is a very problematic one, and certainly it should not be attempted without careful conceptual analysis and reflection. A useful example of this problem is offered by a recent article by H.A. Chapman et al., “In Bad Taste: Evidence for the Oral Origins of Moral Disgust” (Science, ), which relates moral disgust to the physiological mechanisms that characterize the gustatory distaste that is elicited by toxic or harmful foods (“immorality elicits the same disgust as disease vectors and bad tastes”). The basic assumption of the article is that there has been an evolutionary co-opting of the adverse reactions to gustatory distaste, first to the hygienic arena and subsequently to the moral arena, and that this phenomenon is much more relevant than previously suggested. Moreover, according to the authors, the adverse reactions do not apply to transgressions linked to the concepts of contamination and purity only, but much more generally in the whole moral realm. This has happened, according to the authors, because of “the vital importance of regulating social behavior for human beings”. However, the article's conclusion that immorality is disgusting in the same way bad tastes and disease vectors are – so that facial expressions such as the activation of the muscle region of the upper lip could be used to predict the refusal of unfair economic offers and, potentially, of all situations perceived as morally unacceptable – can easily be misleading if it is not placed in the proper context and carefully clarified. Of course, visceral components do play a role in our moral lives, and physiological reactions are important, but when we enter the field of normativity (what is a fair offer? when and how should someone's action be sanctioned?) evolutionary cerebral innatism seem to fail to account for the diversity present in ethical systems. Moreover it seems unable to explain the strength of the reasons that identify morals as we know them.
Let us consider the painful and controversial case of Terri Schiavo. One cannot rule out – and indeed it is likely – that those who supported the decision to let her die, and argued in favor of individual self-determination and the right to refrain from prolonging useless suffering, would have reacted to a court decision to keep her alive with the adverse “disgust”, and the refusal response predictable on the basis of the activation of the upper lip muscle. By the same token, those who were against the court decision to suspend forced-feeding, and argued in favor of the defense of life and the illicitness of euthanasia, would probably react to the idea of letting her die with the adverse “disgust”, and the refusal response predictable on the basis of the activation of the upper lip muscle. Thus both physiological responses would indicate the triggering of an automatic signaling modality linked to an avoidance response; but this would not tell us why for some people one of the two alternatives is disgusting and the other worth-pursuing while for other people the situation is just the opposite. In both cases, the moral unpleasantness, the “bad taste” that remains in one’s mouth is the same, yet the motivations are polar opposites.
The fact that there is no evolutionary account of the differences between these two ethical perspectives is no surprise. This remark is analogous to the familiar point that the time of culture is, in most cases, much faster than the time of evolution (and so many cultural phenomena need different explanantia). In particular, the two moral views of the dignity and of the sanctity of life (on which the two opposite reactions are respectively based) have appeared in human history only recently, arguably no more than two or at most three millennia ago. But in order to get a satisfying evolutionary account of a particular biological trait one needs a much longer time – that is, one has to trace the origins of that trait at least to some dozens of thousands of years ago.
With regard to this, it should be noted that if the same context causes opposite physiological reactions in two different individuals, these difference – far from being the explanantia of the different moral attitudes of the subjects – needs an explanation. And such an explanation can only be a cultural one. In our example, the two individuals have opposite moral reactions, and consequently different physiological expressions, because their respective systems of moral values are very different. So the first individual will have a reaction of moral disgust (and consequently will raise his lip) because she believes in the sanctity of life and in our scenario life has been profaned. On the contrary, the other individual will have the reaction of moral approval (with the related physiological expressions) because she believes that the life of the woman was not worth living. The difference in the physiological responses of the two individuals can therefore be explained by referring to their respective cultural backgrounds, in which their moral views are respectively incorporated. To put it differently, the direction of the explanatorily relevant causal imputation goes from the cultural to the physiological; that is, the cultural factors have to be seen as the causes and the physiological phenomena as the effects.
But we will say more on this article in our next post.
The Tilburg Institute for Law, Technology, and Society (TILT) is proud to announce the upcoming TILTing Perspectives 2011 conference entitled
"Technologies on the stand: legal and ethical questions in neuroscience and robotics"
The conference will be held at Tilburg University (the Netherlands) on 11 and 12 April 2011. It will focus on the legal and ethical questions raised by the application of neuroscience and robotics in various contexts. The conference will have two independent, but related tracks:
1. Law and neuroscience
The first track will focus on the legal and ethical issues surrounding recent developments in neuroscience and the legal application of neurotechnologies. Discussion topics will include, but are not limited to:
- the possible use of neurotechnologies in a legal context and the implications thereof,
- the role of neuroscience in determining legal capacities and in detecting deception,
- the legal and ethical issues surrounding the medical application of neurotechnologies, and
- the legal and ethical implications of using neurotechnologies for enhancement purposes.
2. Law, ethics and robotics
The second track will focus on the legal and ethical implications of the application of robotics in social environments (e.g., the home, hospitals and other health care institutes, in traffic, but also in war). Discussion topics will include, but are not limited to:
- the legal and ethical questions raised by the proliferation of robotics for the home environment,
- the legal and ethical questions raised by the deployment of robotics in war,
- liability and the legal status of robots, and
- autonomous action, agency and the ethical implications thereof.
The conference aims at bringing together national and international experts from the fields of (1) law and neuroscience and (2) law, ethics and robotics, and to facilitate discussion between lawyers, legal scholars, psychologists, social scientists, philosophers, neuroscientists and policy makers.
Our confirmed keynote speakers are:
- Stephen Morse (University of Pennsylvania)
- Paul Wolpe (Emory University)
- Wendell Wallach (Yale University)
- Noel Sharkey (University of Sheffield)
If you would like to present a paper at this conference, please send in an abstract (of max. 350 words) using the abstract submission system on our website: http://www.tilburguniversity.nl/faculties/law/research/tilt/events/tilting2011/abssubmission/
Abstract submission is open from 1 September until 15 October. You may submit an abstract on the topics suggested above, or on a related topic that falls within the conference theme.
Full papers will be published in the conference proceedings. The winning paper in the Best Paper Contest will be published in a special edition of the international, peer reviewed journal Law, Innovation and Technology (Hart Publishers).
Important dates for submission:
- Deadline for submission of abstract: 15 October 2010
- Notification of acceptance and invitation to write a full paper: 1 November 2010
- Deadline for submission of full papers: 15 December 2010
- Reviewers' feedback and comments: 31 January 2011
- Deadline for submission of revised papers: 15 March 2011
- Conference dates: 11 and 12 April
For more information, please visit our website: http://www.tilburguniversity.nl/faculties/law/research/tilt/events/tilting2011/