The Misreading of Greene and Cohen

One of the most cited papers in neurolaw circles is For the Law, Neuroscience Changes Nothing and Everything by Joshua Greene and Jonathan Cohen. Many neurolaw scholars seem taken by its claims that we lack free will and that the legal concept of responsibility will eventually change to a more consequentialist system that does not depend on moral responsibility. What such scholars frequently fail to recognize is that the paper's claims about free will, while crisply and engagingly expressed, cover no new ground. They discuss positions long recognized and discussed by philosophers.

The paper's more significant contribution consists of a prediction. Greene and Cohen predict that as neuroscience continues to improve, we will more easily visualize the chain of causal connections between the physical world, our brains, and our decisions. It will be harder to hold on to intuitions of moral responsibility, they argue, as we start to understand ourselves as mere cogs in a universe that set our choices in motion long before we were born. As moral intuitions change, doubts about responsibility will grow, and those who craft the law will change it so that it no longer depends on increasingly dubious claims about responsibility.

Once the paper's predictive ambitions are clear and they should be to anyone who read the abstract, the central problem with the paper becomes easier to recognize: they offer very little evidence to support their prediction. I happen to be sympathetically disposed to the consequentialist world they envision. But will it come to pass for the reasons they give? The paper offers little reason to sway you. It depends on a variety of issues touched on by psychology, anthropology, religion, and more that receive little or no attention in the piece. 

In Part I of my recently published paper, Will There Be a Neurolaw Revolution?, I describe some of the holes that need to be filled to support Greene and Cohen's prediction. Josh Greene tells me by email that their original paper was meant as a kind of informed speculation and that his ongoing research will flesh out the prediction. As I said, I'm sympathetic to his view and will be very interested to see how the research pans out. But in the meantime, the jury is out as to their prediction and should remain so for some time.