The Philosopher's Defence (by Weston Rudd)

Okay, I'll forgive you if you didn't like my catchy title. I won't forgive you, however, if quit reading this post because of my painfully obvious deficiency in the humour department.
While not likely humorous, this post is supposed to be thought provoking, and tries to accomplish this by asking a fundamental question about the metaphysical foundation of the criminal law. At the risk of oversimplifying, metaphysics is the study of any question about reality which cannot be answered by scientific observation and experimentation. One such question is the question of free will: are humans rational agents capable of exercising control over their actions and decisions (1)? The criminal law presumes this to be the case, and, in fact, is so certain this presumption is correct that it is prepared to mete out punishment to those who make decision to act in an ‘illegal’ manner. The problem for the criminal law, however, is that the notion of free will, being a metaphysical notion, cannot be studied by scientific observation and experimentation. Incarceration is a hefty consequence to impose on a person when the justification for such consequence (free will) is not testable.
In a paper entitled For the law, neuroscience changes nothing and everything (2), Joshua Greene and Jonathan Cohen explain that the decision making process occurs in the human brain, and that at some point in the near future, sophisticated neural scanners may be able to track “the neural activity and connectivity of every neuron in a human brain”. This ability would enable us to “trace the cause-and-effect relationships between individual neurons”. By observing this relationship, we would be capable of seeing that “deciding” is an organic event in the brain, as opposed to an illusory process that occurs in the mind. Greene and Cohen state that humans:
feel as if we are uncaused causers, and therefore granted a degree of independence from the deterministic flow of the universe, because we are unaware of the deterministic processes that operate in our own heads. Our actions appear to be caused by our mental states, but not by physical states of our brains, and so we imagine that we are metaphysically special, that we are non-physical causes of physical events. This belief in our specialness is likely to meet the same fate as other similarly narcissistic beliefs that we have cherished in our past: that the Earth lies at the centre of the universe, that humans are unrelated to other species, that all of our behaviour is consciously determined, etc.
That this “narcissistic” belief is a fundamental premise of the criminal law can be seen in the comments of Lord Denning in Bratty v. Attorney-General for Northern Ireland, [1963] A.C. 386, at p. 409, wherein it is recognized that sleepwalking gave rise to a defence of automatism:
No act is punishable if it is done involuntarily: and an involuntary act in this context -- some people nowadays prefer to speak of it as "automatism" -- means an act which is done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleep-walking (my emphasis).
Lord Denning, no dummy in the world of jurists, demonstrates the common metaphysical notion that the mind is somehow distinct from the body, and because the “mind” was not engaged, no criminal responsibility should follow. If Greene and Cohen are correct, science will eventually demonstrate that the “mind” will never be engaged, since the mind does not exist. The entire process (both decision to act and action) is the result of neurons firing in the brain (not the mind), and as noted by Greene and Cohen:
There are many causes that impinge on behaviour, but all of them – from the genes you inherited, to the pain in your lower back, to the advice your grandmother gave you when you were six – must exert their influence through the brain. Thus, your brain serves as a bottleneck for all the forces spread throughout the universe of your past that affect who you are and what you do. Moreover, this bottleneck contains the events that are, intuitively, most critical for moral and legal responsibility.
Undoubtedly, many of us will be very uncomfortable with the notion that we may not hold the rudders of our lives as we previously imagined. If the decisions we each make are as a result of our genes and the neural connections in our brains, as opposed to some metaphysical notion like thoughts in our mind, then how are any of us to be proud of our achievements or ashamed of our failures?
While it is troubling to think that science may establish a testable basis for dismissing the notion of free will (thereby throwing responsibility for criminal actions into disarray) consider the following thought experiment. Imagine that a group of scientists clone a serial killer. These scientists then raise this clone in a tightly controlled environment and ensure that everything that happened to the serial killer in his life happens to the clone at the exact same stage of the clone’s life. Eventually, the scientists put the clone in the situation that resulted in the serial killer’s first murder. Predictably, the clone also commits murder. The question that arises from this thought experiment is whether the clone has legal responsibility for this murder. Arguably, the clone should not be responsible for this murder since he was not the author of his own life, but was merely the victim of a cruel science experiment. The next question, then, is how is this clone different from any of us? While it is unlikely that we are being controlled by a superior intelligence (I say “unlikely” to avoid the protestations of the Matrix fans), each decision we make is the product of the sum total of our genes and all of our experiences (none of which we choose). Accordingly, if one of us were to commit a criminal act, would we be any more responsible for this act than the clone was for the murder?
This is a tough question, and I anticipate that regardless of the answer, it would capture the heated attention of many a citizen. While the average citizen would likely vociferously object to a person evading responsibility for an act due to sophisticated scientific and philosophical arguments, and politicians would likely scramble to enact legislation to deal with this horrible spectre, as criminal lawyers it is our job to ensure that regardless of the social consequence, when this argument comes of age, it is given its due.

(1) http://www.wikipedia.org/wiki/Free_will
(2) http://www.wjh.harvard.edu/~jgreene/GreeneWJH/GreeneCohenPhilTrans-04.pdf