Tuesday, January 17, 2006


We are going to examine how what neuroscience teaches us about human behavior changes the ethical value of the retribution and the utilitarian punishment reasoning in a legal case hereunder.

The scene happens in a court room of one of Paris suburb, Bobigny. Ben, a young 16 years old black boy, is answering the questions of the prosecutor for a couple of stolen CDs in a supermarket. He is nervous, he perspires, his hands are contracted. We can feel the tension as Ben tries unsuccessfully to intervene in the middle of the prosecutor flow of humiliating sentences. Ben starts a sentence: “It was not to steal…” He is cut off again by the prosecutor who finally stops. “What message of importance are you willing to deliver to us?” Ben starts over again: “It was not to steal… I had them already.” The prosecutor goes: “But of course you had them since you stole them.” The tension goes up one more level. Ben murmurs an insult to the prosecutor. The prosecutor turns him in derision, “Explain! Explain, instead of growling like an animal!” At that very moment, Ben is seized by a violent emotion and jumps over the bar, leaps on the steps and grabs the prosecutor on the neck. Ben is handcuffed and the president of the court says: “Immediate appearance for violence on a magistrate on duty. Six months of firm prison!”

Putting aside the fact that Ben was provoked by the prosecutor, should Ben be treated as a responsible being? Yes according to Kant, if he is not “an animal who lack reason, and if he doesn’t appear to be mentally ill and is in control of himself.” The question here is what is that “self” in himself that is responsible? Neuroscience gives us more information on that matter. But before going to neuroscience, let’s go back to Kant’s idea of a person. Kant thinks humans have “an intrinsic dignity;” somehow, it is because they are so great that they should be held responsible. “They are free agents capable of making their own decision, setting their own goals, and guiding their conduct by reason.” What this almost implies is that we take our greatness from reason; the law of reason is the law by which ethical standards are being set. One will be willing to ask, “Where is that “reason” comes from? And how is it being assessed?” Kant makes an assumption without any evidence. Despite what it appears to be, Kant definition of a person is in direct relation with the idea of humans as God creatures not as a result of evolution like the neuroscience explanation of what happened in Ben’s brain will tell us.

Ben’s brain morphology like all human being is a product of its evolution. There are two areas on the left brain that were in full activity when all that happened; one is called Wernicke’s area and the other is called Broca’s area. When Ben was trying to speak, it was the Broca’s area that was in activity because that’s where words are stored. Ben’s brain was trying to get words from that Broca’s area to send them to the Wernicke’s area so that he could articulate some words to answer the prosecutor. Unfortunately, Broca’s area didn’t have the minimum of two hundred words Ben’s brain needed. Therefore, the arched beam which connects the two zones did not have much information to exchange. This is the reason why Ben’s Wernicke’ area stammered the few words that the Broca’s area didn’t send him.
Ben underwent during thirteen to fourteen years a compulsory education that did not give him the words that he vainly tried to find in front of the court. And the prosecutor didn’t help him. The violence that resulted from the scene is clearly a consequence of Ben incapacity to put in words his thoughts while organizing them because only the organized words alleviate a thought without which it becomes chaotic, tumultuous, and is knocked on the walls of a cranium until the unbearable, to finally explode in an uncontrolled act of violence. The controlled flow of the words, the quiet succession of the sentences delays a potential physical conflict; they give a chance to two intelligences to remain a word exchange rather than a punch exchange.

Now we understand what happened in Ben’s brain, we know that for a moment his animal brain took over the “human” brain because the human brain lacked some information. But because humans are a greater idea that the little brain mechanisms, because Ben as a rational being is the embodied moral law, he has to pay. Kant will definitely be uncomfortable with the neuroscience explanation as humans occupy a special place in creation, “above all price.” Again, we are so great that we can’t be that small, we have to take responsibility. But where is he getting that greatness idea? God, we are a product of God’s creation not evolution.

Neuroscience takes away that whole greatness by reducing the great idea of human into some chemical and electrical interactions between two parts of the brain. There is an assumption that we are greater than that.
The first consequence of this is that science seems to take away the greatness of the moral values associated with a human being. Ben’s responsibility comes from something greater which is “human dignity,” and we are still these great human beings despite our understanding of the mechanism anyway.
The second consequence is that, if Ben is not responsible, who is? If it’s the society how can we make the society pay as we are retributivists? The person responsible has to pay;
Kant as a retributivist thinks that someone who assaults another person deserves to “payback” for justice purposes. If Ben as someone who “delights in annoying and vexing peace-loving folk receives at last a right good beating, it is certainly an ill, but everyone approves of it and considers it as good in itself even if nothing further results from it.” If we follow him Ben did something wrong, he has to pay. This reasoning complicates things for retributivist when it comes down to apply the law, because neuroscience gives us a direction to seek for the responsible agent. In this case it is the person or the institution in charge of giving Ben that basic education needed.

Let’s look at how what we know from neuroscience affects the utilitarian reasoning.
Bentham, the great utilitarian theorist said that “all punishment is a mischief: all punishment in itself is evil.” Because it’s our duty to increase the amount of happiness in the world, we should avoid treating people badly. In other words, is a good purpose served by punishing criminals, other than simply making them suffer? Why shouldn’t we respond to crime by attacking the problem that give rise to it? And here is where we can’t make a decision about punishment until we have identified the origin of the problem. While the retributivists say from the very beginning that we are held responsible and the cause is “unable to have self-conscious desire and goals like all the mere “things” that have value only as mean to ends, and it is human ends that give them value. What happens once the utilitarian have identified the cause? In Ben’s case, lack of education? They think a well-designed system of punishment might have the effect of rehabilitating wrongdoers. How does this applied to Ben? First the utilitarian will first imprison him to remove the danger to society, and then they will address with education opportunity his case for the mutual benefit of Ben and the society. But the question here is, how ethical is that approach to Ben’s case? We know the cause but we punish him anyway even if we try to compensate the gap Ben has been a victim of; as he couldn’t have made his self childhood education. The utilitarian ethics here is in contradiction with its own logic as it says Ben is not responsible but we punish him anyway and while doing so, we will fix the problem by filling the void we didn’t fill in the first place. Justice is not fulfilled here. The utilitarian reasoning is unfair since we have the scientific understanding of what happened. Before we knew for sure the brain process, it seemed the more progressive and the more just. The consequence of the neuroscience explanation doesn’t affect much the utilitarian approach who only seeks punishment for Ben to protect the society by putting him not in prison but in a correction facility, which is a politically correct name for prison. For utilitarian Ben remains guilty. While if they were being consequent with their logic, they would have to look at the cause to determine legally the responsibility. If the lack of education is the cause, who is responsible of the early education a child is suppose to have? Himself? This is where there is a discrepancy between the reasoning and the practice.
Utilitarian appear to be more hypocritical than retributivists as they achieve the same end with an ethical reasoning that is not put in practice. After utilitarian have determined the cause of Ben’s problem there is a desire to shift to “an eye for an eye, a tooth for a tooth.” Retributivists reasoning is to make the person responsible pay, if we want to be ethical. Here we get rid of the idea of the greatness of mankind that makes us responsible for illogic reasons. With the neuroscience evidence it’s not just about human dignity but about how human brain actually makes us behave the way we do.
Maybe that’s what consciousness is all about and we find its definition in neuroscience. Antonio Damasio separates it in two: the core consciousness and extended consciousness. It seems that Ben was caught up in the core consciousness that “doesn’t illuminate the future, and the only past it vaguely lets us glimpse is that which occurred in the instant just before.” What Ben missed at the moment where he became prisoner of the present instant was some information coming from what Damasio calls the extended consciousness that would have provided Ben “with an elaborate sense of self and placed him at a point in individual historical time, richly aware of the lived past and of the anticipated future, and keenly cognizant of the world beside it”.

Knowing now the neurological process that led to Ben behavior, who would be responsible of Ben’s unconsciousness? The person legally responsible of his education; in the case of France it’s the Ministers of National Education during the years concerned. Could we imagine a couple or more French ex-Ministers of Education having to be prosecuted because one 16 years old young man physically assaulted a prosecutor in court after being accused of stealing CDs in a supermarket? If it is possible, it means we will have achieved an ethical retribution of punishment based on scientific explanation. If not, we will still be reluctant in using scientific information to set up our moral values.

The Elements of Moral Philosophy James Rachel Mc Graw Hill 2003
An Introduction to Brain Behavior by Bryan Kolb and Ian Q. Whishaw, Worth Publishers 2001
Article of Liberation (French Newspaper) June 2004
The Feeling of What Happens by Antonio Damasio Harcourt 1999


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