Neuroscience and the Law: A Philosophical-Scientific Perspective on Determinism in Law

With God’s help

The article is presented as a humble offering to my friend Oz, Judge and General Menachem (retd.) Finkelstein, YTO. We have discussed this subject more than once in our conversations, and I was happy for the opportunity to formulate my thoughts and put them on paper for your honor.

I know you as a person with inexhaustible curiosity, humility, seriousness and rigor, combined with a wonderful sense of humor, sincerity and honesty, a bright face, comprehensive and versatile knowledge, common sense and interest in people as well as in various fields of knowledge. My best wishes for many more fruitful activities, in the form of "adding and going", which we will all continue to agree on throughout. Until one hundred and twenty (at least).

If we win and the time is fast Let no one say to us: Leave! We will go again, my friend, On the paths of the Meir Garden, Carrying on sticks, with an evening.

[…]

Trees will move above us.
May they be illuminated with light among the Arabs.
The horns are still young.
And behold, their heads are in heaven. And behold, in the glory of their standing.
They surrounded us with thunder and trembling.
The years that have passed have brought them together.
Those are the years that have bent us.

[…]

and at-at from old age and weakness,
We bow our heads to the pool.
Children will approach in a whisper
And they will say: We have fallen asleep, O sons of Terah…

(Alterman, "Meir Garden in Tel Aviv")

introduction

Neuroscience has been gaining momentum in recent years. Our understanding of how the brain works and the relationship between it and our decisions and actions in general is expanding and deepening every day. Huge budgets are being devoted to establishing and operating new brain research institutes around the world, and of course in Israel as well.[1] In this context, a fascinating transition of an ancient philosophical question, determinism and free will, is taking place from the realm of philosophy to the realm of natural science. If it was once clear to everyone that this was a philosophical question inaccessible to scientific research, today it is becoming increasingly clear that this is a question that will probably be decided by scientific tools (quite a few brain researchers believe that it has already been decided).[2] In research institutes, a fairly broad (though not complete) consensus has emerged around a materialist and deterministic picture, according to which man is a deterministic physical machine, meaning that the totality of present circumstances uniquely dictates all of man's future actions. Determinism holds that what we call "discretion" is nothing more than mechanical calculation (for more details, see below in Chapter B). This picture has far-reaching implications in human, philosophical and, of course, legal contexts.

Systematic engagement with these issues today requires multidisciplinary expertise. It requires philosophy, physics, neuroscience, biology, computer science, logic, mathematics, psychology and psychiatry, neurophysiology, medical devices, and more. It is no wonder that even experts sometimes make mistakes, due to a lack of knowledge or skill in some of these areas or because of biases in worldview. In my book Freedom Sciences[3] I discussed and demonstrated these phenomena, and argued that one of the causes of failures in discourse is a lack of conceptual analysis. I presented a systematic and comprehensive picture that advocates libertarianism, that is, free will, that is grounded in philosophical considerations and consistent with the findings of scientific research. My goal was to show that the consensus described above is reckless.

In this article, I will briefly present arguments in favor of libertarianism. My goal here is to outline the contours of the debate (emphasizing points that may confuse people who are not in the field) and its implications for law, and especially to point out failures and underlying assumptions in the discourse. My conclusion will be that within the framework of this discourse, a revolution of the most fundamental legal concepts is developing, without all of us paying attention to it and sometimes without explicitly putting it on the table. We allow experts to determine these basic doctrines, but they do not always have the necessary tools. To be brief, I will resort when necessary toMy books The above and individual sources are as accessible and clear as possible.[4] My impression is that in Israel, more than anywhere else in the world, there are professional communities that are still not sufficiently aware of the need to clarify these issues and their implications.[5] My hope is that this article, beyond its content, will also contribute to the awakening of this important discourse.

In the first chapter, I will briefly address the problematic nature of expert brain testimony in court. In the second chapter, I will describe the two approaches, the determinist and the libertarian. In the third chapter, I will address basic legal implications of this debate, and in the final chapter, I will address typical fallacies in presenting these implications to jurists. Finally, I will summarize the main points.

A. Experts in Court: Neuroscience

The legal world has already become accustomed to referring to experts from various disciplines. For our purposes, the reference to psychiatry is particularly relevant, as it also touches on the question of determinism. Many psychiatrists assume, sometimes as if they were talking out of their wits (see, for example, Dov Alexandrovitz's article, "Criminal Responsibility and the Psychiatrist,"[6] Hereinafter: Alexandrovich), a deterministic picture. In the third part of my books[7] I have shown that this assertion has no solid scientific basis, other than being an accepted and effective paradigm in research and treatment. In other words, it has methodological justification but not necessarily substantive. Still, most jurists do not have the tools to examine the scientific material, and therefore difficult problems arise when they come to interpret scientific statements presented to them.

In neuroscience, the situation is more difficult. The material is much more technical and less accessible to laypeople. It is worth mentioning an important comment made by Prof. Alumit Yishai:[8]

Nita Farahani, a law professor at Duke University, opposes introducing brain scans into court. She argues that jurors believe[9] Everything is "scientific," and therefore brain scans, which are inconclusive, may tip the scales. Prof. Farahani warns of a worrying phenomenon: the public is willing to accept any explanation that mentions neuroscience terms or brain scan images as a good and satisfactory scientific explanation, even when the information is wrong, partial, irrelevant, or illogical.

The field of neuroscience is newer and less well-known than psychiatry, and the information and picture that emerges from it are changing rapidly. For all these reasons, there is still no systematic legal engagement with neuroscience, certainly not in Israel. Experts in brain research can declare in court that man is a deterministic machine, and even present this as a scientific finding (see example at the end of the article). The judge finds himself forced to deal with philosophical concepts that are presented to him as if they were expert testimony.

Greeni and Cohen wrote as early as 2004:[10]

Our moral intuitions about criminal responsibility are transforming, and the Court is failing to transform pari passu with us.

The main issue from the field of neuroscience that arises in the legal context is brain scans. Brain scans are submitted to the court in the United States (in Israel, very few are so far),[11] And the question of how to treat them is already "in the room." Many are warning (see, for example, Avery)[12] On contradictions and inconsistencies in the courts' treatment of brain scans on the evidentiary level. Precisely because of the problematic nature described here, most of the literature written for lawyers deals with the problems of reading, interpreting, and deciphering brain scans and their meaning (see an excellent introduction for judges in Jones[13] and from many places in his note 17). They mainly discuss questions of accuracy, relevance of the findings to the questions at hand, type of scan (structural or functional), statistical assumptions, etc. Lawyers sometimes do not understand that the image presented to them is not a photograph in the classic and simple sense, but the result of statistical processing and averaging using complicated algorithms, all of which is of course saturated with interpretations and assumptions that are not simple and subject to controversy. However, my concern in this article is not with the analysis and use of data, but with the fundamental significance of neuroscience for fundamental concepts in law.

B. Determinism and Libertarianism: A General Introduction

 

Materialism and dualism[14]

I will begin by describing an argument that is tangential, but not overlapping, with the argument about determinism. The materialist view holds that there is no non-material dimension in man. The sober materialist does not deny the existence of a mental dimension in man, sensations, experiences, desires, thinking, emotions, memory, and so on, but he attributes all of this to the material body. According to most contemporary materialists, the mental layer emerges from the material complex, that is, the structure of the brain creates sensations, experiences, desires, thinking, emotions, and so on. In their view, there is therefore no justification for assuming the existence of an additional substance in man beyond matter (soul or mind). This approach is today called emergentism.

Opposing emergent materialism is the dualistic view, which holds that man is a composite of matter and spirit. Beyond and adjacent to the body, there is another, non-material component within us, which can be called spirit (or soul or nefesh).

Determinism

According to the deterministic view of nature, which has become very strong in modern science, every event that happens in the world has a physical cause. The description of these causal relationships is essentially the laws of nature. It is commonly thought that the laws of nature are rigid, and given a complete set of circumstances X at time t₁, reality will change according to the laws of nature and will inevitably arrive at time t₂ To the next state Y. The material body has no possibility of reaching another state. Despite the few differences of opinion that exist regarding this picture, it is almost completely agreed upon (including by myself).[15] However, the philosophical determinism (as opposed to scientific) with which we are concerned concerns man and not inanimate nature and physics.

Determinism as a philosophical approach relies heavily on the reductionist (or physicalist) assumption that the entire world is essentially physics. Our chemistry, biology, and physiology are nothing more than assemblies of complicated physical processes. In other words, the basis of determinism is materialism. This account is simplistic and not entirely agreed upon (although there is a fairly broad consensus on it in the scientific world). Furthermore, it is not necessarily necessary to hold a deterministic worldview. I adopt it here mainly for didactic reasons, to show that even in this rigid picture there is room for free will.

Every action of a person in the world is a movement of a material body, and therefore must be subject to the laws of nature, and therefore deterministic. The movement of any organ is based on the contraction of a muscle. The contraction of the muscle is activated by a command from the brain, which passes through the nervous system to that organ. However, this command is nothing more than an electric current, and the laws of physics teach that an electric current is created from an electric force field. However, the electric field in the brain is also a physical event, and therefore it must also have some physical source, and so on. The determinist claims that it is impossible to break this chain. The assumption that one of the steps in this chain occurs without a physical source contradicts the laws of physics.

The conclusion that emerges from this is that the structure of the brain dictates the electrical currents and, through them, the actions we take and the decisions we make. The brain itself is a product of genetics and various environmental and external influences, but for our purposes, the determinist claims that given a specific brain structure and state, this fully dictates the person's decision. In his view, a person's response to a stimulus or action under certain circumstances is done just like the mechanical processing of input by a computer and the creation of an output. The stimulus and circumstances are absorbed by the brain, which performs a calculation on them (which, of course, depends on its structure), and the result is an output that is the decision and the instruction to act, and subsequently the physical action itself.

Libertarianism and dualism

As mentioned, the dualist believes that there is a non-material component in man. By its very nature, this component is not subject to the laws of physics, since it is not a physical being. However, dualism in itself cannot constitute a sufficient basis for libertarianism, also because of the possibility that this component also operates according to deterministic laws (even if not the laws of physics). Furthermore, the dualist also agrees that a person's actions are physical movements of material objects (organs and body). As I explained above, physics teaches us that physical actions are necessarily caused by physical causes. For example, the second law of Newtonian mechanics states that a material object moves only if a physical force acts on it, and a physical force is generated by physical factors (sources of charge).[16] If the spirit (or our will) moves an electron in the brain and creates an electric current, then this current has no physical cause. This contradicts the laws of physics.

Ostensibly, the libertarian should reject the physical picture of the world and the laws of nature, but this is unreasonable, since we have seen that physical determinism is well-grounded in scientific findings. This is the main argument against libertarianism.[17] The libertarian is in a dilemma between scientific-physical information and his libertarian intuition. As mentioned, here I cannot go into the various considerations on which the libertarian intuition is based and which are used in deciding between these two intuitions,[18] But the bottom line is that the sober libertarian, in addition to being a dualist, cannot avoid some qualification of the laws of physics. In his view, a person acting by free will moves electrons without a physical force causing it. Although he also believes that the movement of the first electron has a reason, human will, it is not a physical reason. From here on, a chain begins that operates according to the laws of physics. In his view, there is no escape from the assumption that a person's autonomous action (the moment he "chooses") violates the laws of physics.

Three mechanisms: determinism, indeterminism, and free will

One of the common arguments against libertarianism is a dilemma-structured argument put forward by the Dutch philosopher Pieter van Inwagen.[19] In simple terms: if human action has a reason, then it is determinism; if there is no reason – then it is a random, haphazard action, indeterminism. Since one of two situations exists – there is a reason or there is no reason (there is no third option) – then in either case there is no free choice.

The flaw in this argument lies in its assumption. The libertarian holds that there is a third mechanism, free will, which is neither determinism nor randomness.[20] In other words, in his view, indeterminism is divided into two different mechanisms: free will and randomness. A random action is an action that happens by chance. A deterministic action is an action that is done by force of a cause that compels it. An action of free will is an action without a cause, but it is not random. A person who decides to be free acts out of discretion and for some purpose. However, there is no physical cause that compels him to do so, and therefore it is indeterminism.

Misunderstandings of Libertarianism: The Topographical Outline Model

Van Inwagen unwittingly assumes that in the libertarian picture, man acts in a vacuum, without effects and without causes. Causes and effects are linked to the deterministic picture. This is an incredibly common assumption in these discussions. Thus, whenever we are told that a gene is found that is responsible for violence, belief in God, extravagance, stinginess, and so on, this is seen as proof of the deterministic picture and a refutation of free will. When human behavior of a specific individual or behavior typical of a group is explained, this too is given in terms of cause and effect, and again this seemingly leads to determinism. If education or genetics influence us, it is a sign that we do not act freely. For example, the accepted psychiatric paradigm is that psychiatric explanation is causal, and psychiatric treatment is treatment of the causes of the disorder.[21]

The libertarian does not accept these concepts. First and foremost, on a factual level, there is no genetic (or psychiatric) explanation that offers a complete explanation of human behavior. It is always a question of correlations and tendencies, a description of trends in groups of people, and not a one-size-fits-all determination regarding a specific individual. The determinist sees this as a technical problem (the scientific information we have is simply incomplete), but the libertarian sees it as a fundamental problem, which no amount of scientific progress will solve.

The arguments presented above are essentially a caricature of libertarianism. The sober libertarian accepts the laws of nature, and of course does not deny the existence of various influences on human behavior: genetics, education and environment, interests and instincts, his personal and social psychology, and more. However, the determinist sees the totality of these factors as something that uniquely determines a person's behavior and decisions. A person is nothing more than this entire totality, nothing more. In contrast, according to the libertarian, these are factors that influence behavior (all of which are taken into account in a person's judgment), but do not uniquely determine it.

The sober libertarian picture can be better understood through the following analogy. Think of a stream of water moving over some topographical outline, with gullies, mountains, hills, saddles, valleys, and so on. The water will always move to the lowest place accessible to it (minimum potential energy). The outline around them deterministically dictates the course of their behavior. This is deterministic behavior. In contrast, a person moving over the same outline, as a physical body, clearly has different influences on it that try to push it in different directions (minimum energy). This outline describes the totality of the influences described above, the result of genetics, education, and the environment, which exert forces that try to make a person go in certain directions (downhill), which are more comfortable for him to go, and prevent him from going in other directions (uphill). However, unlike water, the libertarian believes that man has free choice, and he can decide to act contrary to the forces acting on him (to climb a mountain or to avoid descending into a valley). This will require effort from him, but it is within his power. The libertarian agrees that a man's decision is not free from influences. It is free only in the sense that the environment does not unambiguously dictate the outcome. Therefore, in his opinion, genetic and psychological-sociological-psychiatric findings concern man's tendencies, but do not provide a full explanation for his behavior. At most, they describe the average behavior of a group and not the behavior of an individual. All of these create the topographical outline within which man acts, but beyond all influences lies man's free decision, and this has no scientific-causal explanation.

The (sober) libertarian also adopts materialistic determinism as a scientific paradigm. When it comes to explaining behaviors and brain activities, there is no use in assuming that such a process could be initiated by the power of the will rather than by a physical factor. This will not lead us to any explanation or prediction (because we do not know where and how this happens), and therefore it is an unhelpful paradigm in the scientific realm.[22] However, this does not mean that it is not factually correct. On the contrary, most of us have an intuition that man has free will, and this is also the assumption underlying accepted legal concepts. The libertarian argues that determinism is a scientifically effective paradigm but not necessarily a true claim about reality. Many philosophers, psychiatrists, and neuroscientists fail at this point, passing from a methodological assumption to a claim of fact.

Libet: Is it really a scientific decision?[23]

Since the mid-1960s, it has been known that before a person takes an action, an electrical signal is generated in his brain, which expresses a readiness potential, known as the RP (readiness potential). In the late 1970s, the American neurologist Benjamin Libet thought of using this information to scientifically test the question of determinism. To do this, he had to arrange three events on a timeline: the appearance of the RP, the decision to act, and the action itself. The action is of course the last stage, and the question he asked was: What is the order of the other two? If the decision to act appears after the RP, then it is clear that it is not a free decision (since the RP created it, and therefore it can also be predicted before it is made in the subject's brain). In such a situation, our sense of decision is an illusion, since the action is dictated to us in advance by neuronal processes. On the other hand, if the RP appears after the decision, then it is still possible to hold the opinion that the decision is made freely. The decision created the RP, and this begins the chain of mechanical action.

Libet himself was a libertarian, and to his surprise he discovered that the RP appears quite clearly before the decision, meaning that he found determinism. Since then, various interpretations and criticisms of these experiments have arisen, and additional experiments are constantly being conducted that attempt to correct some of the failures and examine additional aspects. Here I will focus on one criticism, which is important for our purposes. In Libet's experiments, the subject was asked to press a button that was placed in front of him. This is a casual action, and the subject likely has no hesitation in considering one way or the other. He decides to press and presses, unlike a situation in which he must decide a moral dilemma or make some complex and multifaceted decision. In scientific jargon, this is called the act of picking, not choosing.[24]

In terms of the libertarian picture described above, the RP expresses the subject's topographical outline, which pushes him to press at some point. According to the determinist, this translates directly and necessarily into pressing. However, the libertarian believes that the person can resist and decide otherwise (climb the mountain), even though the RP does affect him. What happens in a casual action of the picking type? When the RP awakens and tells him to press, the person has no reason to resist it, and therefore will really press. This is indeed what Libet found in his experiments. Does this mean that this will also happen in actions of the choosing type? The libertarian does not believe so. In these actions, there are considerations that can tip the scales and cause the person to act against the RP (climb up the mountain and not slide into the valley that the outline pushes him into), and in Libet's own terms – he will veto the RP and not press. In my book I thought that to decide the issue of determinism, an experiment should be conducted on the actions of

What actions are we talking about? Of course, actions that require judgment and a moral decision.[26] These are the actions that, according to the libertarian, violate the laws of physics. Suppose a person is debating whether to steal, murder, or evade taxes. In such a situation, he has weighty considerations here and there, and naturally there is a hesitation. In such a situation, the libertarian argues, even if we saw RP in his mind at some moment, it would not be correct to conclude that the criminal action will necessarily be carried out. It is possible that the value consideration will prevail (in Libet's terms, it will "veto" the RP), and in fact he will not perform the action.[27]

Anyone who draws a deterministic conclusion from Libet's experiments therefore falls into Van Inwagen's fallacy. He is faced with a caricature of libertarianism, according to which it is an action in a vacuum. As explained, sober libertarianism still remains intact even after Libet's experiments. The libertarian does not deny the fact that there are influences on us, he maintains that they do not necessarily determine the outcome. Even after Libet, the question of determinism remained scientifically unresolved.[28]

C. Implications for legal concepts

 

Legal starting point

Avery writes (at the end of the introduction to his Part III):

Neuroscience has led to confusion concerning the Supreme Court's dualist distinction between bodily and mental harms, a doctrine that is quickly becoming a vestige of more scientifically naïve times.

The fundamental doctrine of the US Supreme Court (and of law in general) is dualistic. Avery argues that the distinction between mental harm and neurophysical harm is an outdated intellectual relic.[29]

Furthermore, the law speaks in the language of human responsibility for one's actions and of the capacity for judgment, or lack thereof. This is distinctly libertarian language, and it reflects one of the main scientific or metaphysical assumptions underlying the law. Without going into further detail, it is fair to say that at least the prevailing legal terminology reflects a dualistic-libertarian worldview.[30] This of course raises the question of the significance of the latest neuroscience findings regarding the law.

On responsibility and punishment[31]

It is commonly believed that the debate over determinism has many implications, especially with regard to the moral and legal responsibility of man. If man is a deterministic machine, however complex, then from a philosophical perspective it is difficult to talk about the rights and status he deserves compared to other creatures. However, in the legal sphere, the main problem is that he should not be held responsible for his actions, because he is forced to do them. Only libertarianism can justify judging and imposing responsibility on a man. In recent years, the compatibilist approach has been gaining supporters in the scientific and philosophical community. Compatibilism holds that there is no real contradiction between a free decision that justifies imposing responsibility and determinism. The argument is that if a man does what he "wants," that is, what the set of considerations I described through the outline dictates to him, he is a free man, since there is no external factor that forces anything on him except his personality and his own tendencies. The assumption here is that coercion is always done through an external factor, but if it is a person's character and nature that "forces" them to do something, it is a free action.[32]

One can, of course, accept this definition of the term "coercion" on a semantic-lexical level, but the important question is whether such a definition "saves" criminal and moral responsibility, that is, whether it allows for the imposition of responsibility. As far as I understand, the answer to this is negative.[33] There is no issue as to whether the person is forced to do what he does for internal or external reasons, whether it is the blueprint within him or threats of a gun from outside. If his action is not under his control, that is, if he could not have done anything else, he should not be held criminally responsible. Furthermore, the complexity of the causal process is also unimportant. As long as the mechanism of his action is mechanical and causal, it is not appropriate to hold him responsible.

Needless to say, determinists also accept the necessity of punishment. How do they explain this?[34] First, both the judge and society as a whole are human beings, and as such they are also subject to the influence of their brain structure. Therefore, they are essentially forced to punish criminals even if there is no philosophical justification for doing so. This is a formalistic claim that makes the whole discussion unnecessary, since this discussion itself is also a product of our brain structure. I think most of us feel that if we were convinced that there is no justification for punishing a person, we would be able to overcome our tendencies and not impose a punishment on him. For example, the law recognizes exemption from criminal responsibility if mental illness caused the offense, as will be noted later. If so, the question returns: Why don't we do this?

This, of course, led us to enter into the theory of punishment in law and in general, and this is not the place here.[35] Here I will focus on concepts of punishment that are based on the person's responsibility for his actions. Of course, one can talk about punishment as protecting society from the offender, and then there is no room to link it to the person's guilt and responsibility for his actions. However, the concept of punishment that is based on the imposition of responsibility, for example, seeing punishment as a reward or sanction, is difficult to establish in the deterministic picture.

The determinist usually explains that punishment is not a sanction for wickedness and delinquency, but a correction. Punishment (or the threat of punishment) acts on the person (the offender and society as a whole) mechanically, essentially changing the structure of his mind, which increases the chance that he will not sin in the future, that is, it achieves deterrence.[36] It is important to understand that this is both the justification for punishment and its purpose. The determinist holds that there is no justification for punishing a person for offenses he has committed, since the offenses are not the result of his free decision but of the structure of his brain. The justification for punishment is only its effectiveness and efficiency. According to his approach, this is of course also the purpose of punishment. It is a mechanical action that changes the brain structure (of the offender or his environment) so that in the future an RP will not be created in him that will dictate criminal action. The determinist holds that when we reach a situation where a brain surgeon can make this correction on site and in a reliable manner, we will be able to dispense with punishment.[37] I assume that many readers will balk at reading this description, as it is very similar to what was once called in the Soviet Union, and to this day in China and North Korea, "re-education." But this is a necessary consequence of the deterministic worldview. The doctrine of criminal responsibility as such is incompatible with the deterministic worldview.

The libertarian, on the other hand, does not necessarily see punishment as an attempt to change the brain structure and influence the RP that will be created in the offender (although such effects obviously exist). In his view, the offender deserves a sanction (he is subject to criminal liability). This is the justification, but this is also the purpose of punishment. The libertarian maintains that the purpose of punishment is also educational. Education creates a deterrent that will lead the person to veto the criminal RP even if one arises in him in the future. In his view, even if there were a brain surgery technology that could repair the brains of all of us, this would not be a substitute for legal punishment. Talk about human responsibility is fundamentally based on a libertarian worldview.

First practical implication: the question of the effectiveness of punishment

Beyond the meta-legal debate, it can also be shown that there are practical differences between the approaches. The determinist approach requires examining the impact of each punishment on the accused himself and on society, since the justification for imposing it is solely the "correction" it brings about. Many studies have examined data regarding the effectiveness of death sentences for murder and violent crimes in general (whether they create deterrence and reduce crime).[38] In the determinist's view, these data have a decisive influence on the decision whether to abolish the death penalty or not. The libertarian, on the other hand, is not necessarily impressed by them, since for him the justification for punishment is not only correction but also a sanction as a result of the offender's responsibility for his actions.[39]

Another practical implication: exemption due to "unconquerable urge"[40]

It is generally assumed that if a person acts under an impulse that he cannot cope with, he should not be held criminally responsible (except perhaps to send him to treatment or to protect society from him). Punishment as a criminal sanction is imposed on a person who acted wrongly out of his own free will and is perceived as responsible for it.[41] Many have already commented on this.[42] That this terminology is not successful. There is no fundamental difference between a momentary impulse and a permanent pathological mental or psychological structure (mental illness). In both cases, the person's action is a necessary result of some mental structure, that is, of a physical process and not of an autonomous and free decision. Either way, the accepted view is that if a person acts from a mental structure, temporary or permanent, and not by virtue of his own free decision, he is not responsible for his actions.

Most discussions regarding this exemption are conducted in the psychiatric field, and the relevant terminology is insanity. However, in recent years, neuroscience has also entered the picture, which speaks a different language (on the relationship between languages and arguments, see Avery Part II.A.5). Brain scans are brought to court to demonstrate damage to the brain (due to illness or trauma) or its pathological structure, addiction, immaturity, and more (for examples from various courts in the United States, see Avery II.A). The question of whether to exempt a person from responsibility for his actions in such situations apparently depends on our metaphysical position: in the deterministic view, it seems that the structure of the brain dictates the action in an unambiguous way, and therefore there is room for such considerations. In contrast, in the libertarian view, a person has the option of vetoing and deciding not to act according to the inclination of his evil nature. Apparently, in this picture there is no room for dismissing an impulse or pathological brain structure, but upon closer inspection it becomes clear that the picture is completely opposite.

The accepted view in the legal world is that these are exceptional cases in which the person is exempted from criminal responsibility. The underlying assumption is that in normal and normative conduct a person can make decisions about going in several directions, and therefore responsibility for every step he takes rests with him. A person in a psychotic state or a person with a pathological brain structure is the only one entitled to exemption, since in this particular case the decision was not in his hands. However, such a distinction can be made precisely in the libertarian picture. It has no place in the deterministic picture.

In the libertarian picture, the topographical V (the set of tendencies and impulses embedded in him from the structure of his brain) only influences our behavior and does not determine it. The decision (whether to veto or not) is made by the person, and therefore he is responsible for it. A person who acts under a pathological brain structure, momentary or permanent, is essentially in a setting where the slope is so steep that even if he wants to climb the mountain and not fall into the valley, he cannot do so (or else he is in a situation where his perception of reality and the distinction between good and evil are deficient). In these cases, the psychological-genetic-environmental circumstances dictate his behavior (he cannot "veto" them), like the flow of water in such an area, and therefore he is not responsible for his actions. Libertarianism accepts the existence of pathologies or psychoses in which the person has no control and discretion, it only claims that not all situations and not all people are like that.

In contrast, in the deterministic picture, this is also the situation in our normative conduct. For according to this approach, the outline unambiguously dictates our conduct even in the normative situation. Determinism holds that a person's action is nothing more than a summary of the totality of impulses and drives, the internal structure, and external influences that are expressed in his RP, and nothing more. In his opinion, a person's conduct is similar to that of a stream of water even in the normative situation, and therefore it is impossible to define any situation as pathological. A person always acts according to what his brain dictates, and the difference between a normative and a pathological person is only the structure of the brain (and not the question of whether or not he has discretion).

This is how Alexandrowitz writes (p. 702):

According to our scientific-deterministic approach, we have only one way to test whether the impulse was controlled or not. If the man was dragged along by the impulse, it means that the impulse was stronger than the restraint mechanisms. Obviously, such a conclusion would not be helpful to the trial, but any attempt to state that the man "could have controlled himself if..." denies the deterministic view and is a mere hypothesis, without scientific basis. The jurists expect help from us, but on the basis of our science and not in opposition to it.

He speaks in psychiatric terminology, but in neuroscience terminology it is much more extreme and unambiguous: according to the deterministic interpretations of Libet's experiments, if a person develops RP, he is compelled to perform the act. The RP is always the result of the structure of his brain and not of a decision (he could not have decided otherwise). Therefore, there is no meaning in distinguishing between situations in which a person has criminal responsibility and situations in which he does not have such responsibility. In all situations, it is the structure of his brain that causes the act, and the person has no further discretion in the matter.

We have seen that for the determinist, the justification and purpose of punishment are a mechanical correction of the human mind. According to this, there is no room to distinguish between a person who is responsible for his actions and one who is not responsible for his actions. The only relevant distinction is between a criminal whose mind can be corrected by punishment and one for whom this cannot be done. This is indeed Alexandrovich's conclusion in his article, and it is implied by his deterministic view.[43]

The meaning of this is that even if in the deterministic picture it is possible to justify imposing punishment on a criminal (as a mechanical correction of his mind), it is not possible to justify imposing responsibility on him. The practical implication is that according to determinism there is no reason to exempt a person from punishment due to an action under an "uncontrollable impulse," since every action of a person is such. Hence, there is no point in using the expert testimony of a psychiatrist or brain expert to determine the existence of such an impulse. In the determinist's view, here too a punishment can be imposed on him only in order to correct his mind, so that this criminal impulse will not re-awaken in him in the future (to "re-educate" him). The expert's testimony can only deal with the chance of correction and not with the question of responsibility. In the deterministic picture there is no place for the concept of responsibility, criminal or moral.

Third Practical Implication: Brain Scans in Court – A Review

We currently have several advanced techniques that deal with brain scans.[44] In recent years, there has been a growing tendency to incorporate them into police investigations and court hearings.[45] Most of the proposals deal with the use of fMRI brain scans to detect lies (polygraph).[46] Another use is the discovery of criminal brain structure, that is, an attempt to predict or prove criminality and dangerousness (see, for example, Avery, note 283). There are uses of brain scans as evidence for a plaintiff's claim for damages for pain (see Avery II.B.1). In addition, there are attempts by lawyers to present brain scans in court as evidence of the mental state and criminal irresponsibility of defendants (brain defense: "It's not me, it's my brain"). Brain scans are used to see whether a person has seen any image in the past (witness examination), whether he acted intentionally or unintentionally, and more. It is therefore no wonder that in recent years commercial companies have been established that are trying to bring brain scans to various needs in court.[47]

Things are still in their early stages, but the use of brain scans in legal contexts is no longer uncommon in the United States, both in terms of verdicts and sentencing (see data in Avery, end of II.A.2), despite skepticism from both experts and the legal world.[48] In 2007, the MacArthur Foundation decided to allocate a significant amount of funding for a three-year project called "Law and Neurobiology,"[49] And placed at its head one of the renowned researchers in neuroscience, Michael Gazzaniga. He himself writes (in his aforementioned article) the following:

Lawyers are already trying to introduce brain scans as evidence in trials, and courts are grappling with how to decide when they are admissible. Down the road, the ability to link patterns of brain activity to mental states could undermine old rules about whether a defendant had control over his actions and how much to punish him. No one has a clear idea yet how to drive change, but the legal system, the public, and brain researchers need to understand the issues to ensure that our society remains fair even as new insights challenge old notions of human nature.

Many of these uses are possible, provided that there is complete and valid scientific information (which is currently not true in almost any of the cases described above). Many scientists and lawyers do warn against the reckless use of brain scans, but most of these warnings are directed against incomplete information and misinterpretation of the information. These are technical problems, which in principle can be overcome. My argument here is that there are also fundamental philosophical problems with the use of brain scans, and they do not depend on the state of scientific knowledge or on questions of interpretation.

I would like to point out that my remarks here focus on criminal law. I mentioned that brain scans are also presented as evidence of suffering and pain in civil law (compensation claims), and in this regard the failure is not very significant, for two main reasons: first, pain and suffering are not the result of a decision, and therefore a mental state can certainly be a good indication of their existence; second, in civil law, unlike criminal law, certainty beyond a reasonable doubt is not required, and evidence that tips the scales in favor of the plaintiff is sufficient. Therefore, the uncertainty that accompanies brain scans does not necessarily harm their status as evidence in civil law.

Analyzing the Status of Brain Scans: Determinism and Libertarianism

The determinist sees the brain state as a single-valued measure of a person's decision. Hence, the use of brain scans is conditional, in his view, only on the reliability of the scientific findings and the theory underlying them. According to the determinist view, in order to explain a person's action, we must be equipped with two types of data: (a) a valid scientific theory (what brain state produces certain behavior and decisions); (b) complete and relevant specific information about the defendant's brain state (full-resolution photographs of the areas relevant to the discussion).[50] Given complete information on both these levels, this fully explains a person's actions. The deterministic picture assumes that in principle it is possible to predict a person's criminality or dangerousness based on the structure of their brain (assuming complete information), as well as to explain a criminal act they have committed. In principle, the determinist may agree to punish a criminal even before the crime is committed (punishment as a preventive correction).

In contrast, in the libertarian picture, as described so far, the situation is completely different: even if we are fully and accurately shown a mental state that indicates a criminal tendency in the accused, and even if the scientific information is reliable, complete, and valid, at most we can learn from it about the topographical outline within which the accused or subject operates. His actual decisions are not dictated by this outline. It influences them, but does not determine them. In such a picture, there is no room for unambiguous predictions regarding dangerousness and criminality (but at most statistical assessments). According to this approach, a brain scan cannot be a decisive consideration regarding his criminal responsibility. There are no more solid findings in neuroscience than those in psychological or psychiatric assessments. The fact that he has a certain character or certain tendencies does not exempt him from responsibility, as long as the decision is made by him freely. It goes without saying that the libertarian approach, unlike the determinist approach, has no justification for punishment before the crime is committed.

The discussion of brain scans in court usually involves the assumption that, given complete information, brain scans can be used to decide cases.[51] I wish here to warn against this assumption and to point out that as long as the libertarian argument is not rejected, even complete scientific information will not be sufficient to decide legal questions. Even if a brain research expert testifies in court, his expertise has no significant added value with respect to philosophical questions.

It is true that an expert, a neuroscientist or psychiatrist, can come forward and testify that a brain in a certain pathological state may cause criminal behavior, a problem in perceiving reality (or distinguishing between right and wrong), or a lack of control. However, this is only a statistical statement, and it is not right to draw unambiguous conclusions from it regarding the specific person before us. The legal system must decide on the degree of certainty necessary for us to accept such claims as grounds for exempting a specific defendant from responsibility. This can never be the mandate of the expert. He may be able to tell us (assuming complete scientific information) that the chance that a typical person with such a brain would do such and such is X.[52] Consequently, the court or legislature must decide whether such a level of certainty is sufficient as a defense or exoneration for the particular defendant before us.

The determinist cannot have such a discussion at all, since the discussion is conducted in terms of responsibility. Responsibility does not exist in his world of concepts. In his opinion, the expert can at most determine whether such a brain can be corrected by punishment. As mentioned, it is precisely in the libertarian picture that there is a place for brain scans. If there is complete scientific information regarding these pathologies, which indicates that these are structures or brain states that create an "unconquerable" outline, according to the libertarian, he can be exempted from responsibility.

In conclusion, the problem with presenting brain scans in court is twofold: (a) incomplete reliability of the scientific information, its relevance, and questions of decoding and interpretation; (b) even in the case of complete and relevant information, a brain scan in principle and substance cannot be a decisive consideration in questions of criminal responsibility and delinquency, unless it demonstrates complete irresponsibility. If the findings demonstrate only a tendency, and not a situation in which it is clear that the person cannot veto his tendencies ("not subject to conquest," if and when such a thing can indeed be demonstrated), their significance should be determined legally, not scientifically. As stated, and as I will show below, the experts' warnings deal mainly with problem A, and therefore my aim here is to specifically clarify problem B. I will call this the "deterministic fallacy" below.

D. The Deterministic Fallacy: Demonstration

Avery in Part III.A (see around note 227) writes:

The problem with the jurisprudence in these areas is that neuroscience still suffers from a group to individual problem.

He explains that when referring to brain scan findings, there is a group-individual fallacy, that is, findings that indicate a statistical property are applied to an individual (which may not be true for him specifically). In light of the above, this claim can be interpreted in two ways: in the materialist-determinist picture, this means that our scientific information is incomplete, and therefore has only a statistical or average meaning (problem a). However, in the libertarian picture, this means much more fundamental. Even in a situation of complete scientific information, we are unable to determine anything absolute about a particular person, since he can never cast a veto (problem b). This means that findings from neuroscience require great caution even if we hold to the materialist picture (problem a), but in the libertarian picture, they have, by their very nature, a fundamental limitation (problem b).

The article by Jones and colleagues[53] It is intended to be a summary of scientific knowledge and an accessible introduction for judges when they come to examine neuroscience findings. Its essence is an attempt by experts in the field of neuroscience to prevent interpretive errors by jurists regarding brain scans and scientific findings and to clarify questions of interpretation. And now, in Part IIb, which deals with the necessary biological background, the following is determined:

• All behavior results from the interaction of genes, environments (including social contexts), developmental history, and the evolutionary processes that built the brain to function in the ways it does.
• All behavior is thus "biological".

They state unequivocally that all our behavior is based on the brain, which is itself influenced by genes, environment, history, and evolution. However, this statement itself is not scientifically based. It reflects a deterministic philosophical view, and the libertarian rejects it. There is another important component to his view: human judgment and decision-making. These are from the list given in the article. Typically, the authors express themselves emphatically and present this as a scientific finding by virtue of their scientific expertise.

A caveat appears below:

• Understanding behavior as biological in nature does not mean that behavior is "biologically determined" in a reductionist or reliably predictive way.

Ostensibly, their intention is to say that biology does not determine behavior, and this may sound to the untrained ear as a proper and cautious awareness of the limitations of science and the philosophical controversy I mentioned. However, it should be noted that they add that this is only in the reductionist-predictive sense. Their claim is that behavior cannot be predicted by the brain (for now), but this does not mean that there is an element of decision or judgment here. In other words, in their view, the picture is deterministic but not "computational." Since this mistake is very common (even among scientists), I will clarify it further.

For example, rolling a die is a completely deterministic process. Given the environmental conditions, the shape of the die, the weather, and the initial velocity, the outcome of the roll can be calculated and predicted accurately. Yet, it is a "non-computational" process in the sense that one cannot truly predict the outcome, because the computation is very complex. What prevents prediction is only the computational complexity and difficulty, but there is nothing non-deterministic about it. The above authors argue that human behavior is also like this. In principle, it can be predicted, but the computational power required for this is too great, and our (current) knowledge is too partial. The result is therefore deterministic, although at least for the time being it cannot be calculated. They also further note the complexity of the brain (our behaviors are determined by a complex combination of several of its parts) and the uniqueness of each human brain. All of these are technical limitations, and in principle, it is a question of partial scientific information or imperfect computational ability. Therefore, the picture they present is strictly deterministic, even though it is an uncontested philosophical assumption.

Many scientists and philosophers do not distinguish between unpredictability due to complexity (this is the case of what is known in mathematics and physics as 'chaos') and free will.[54] In the scientific context, this is a forgivable mix-up, but in the legal and moral context, it is a disastrous mix-up.[55] The naive reader who sees statements that behavior cannot be predicted thinks he is reading a libertarian text and does not understand that there is actually latent determinism here. The supposed experts are telling him: "For now, we don't know enough, so the decision is up to you, but we will come back" (when we advance in scientific research and know enough).

Part IIc provides background regarding the interface between biology and law, and states the following:

• Like the rest of behavior, both criminal and law-abiding behavior originates in the brain.
• There is no brain structure, or set of brain structures, that is specifically "for" criminal or law-abiding behavior (since those categorizations of behavior are socially determined).
• To say that brain features influence behavior relevant to crime does not mean that brain features can necessarily explain why certain individuals behaved criminally.
• No explanation of any kind, brain-based or otherwise, has an automatic bearing on justification or exculpation or mitigation in law.
• Legal responsibility for behavior is a legal conclusion, not a scientific finding.
• Establishing a "biological basis" for behavior carries no automatic, normative relevance to anything (legal or otherwise).
• Norms, although influenced by biology, can never be justified by biology alone.

Out of awareness of the naturalistic fallacy (which prohibits drawing value conclusions from facts), they explain that the structure of the brain cannot determine whether a person is a criminal or not. However, it should be noted that this stems only from the fact that determining what a crime is is a norm, and as such is left to society or the legislator and is not a matter for the natural sciences. Again, the naive reader may think that this is a proper awareness of philosophical assumptions and the limitations of science, but it is not. Although the question of whether X is a crime or not is a normative question, it is clear to the authors that the structure of the brain will determine whether a person will do X or Y. In other words, given the normative determination (of the legislator), the structure of the brain, and it alone, defines who is a criminal. The decision and judgment of the person do not exist on the map of neuroscience (as well as in psychiatry, according to Alexandrovitz), and hence neither does his responsibility for his actions.

Summary

After reviewing the deterministic view and its implications for law and clarifying basic concepts, I discussed the implications of determinism for law, its starting points and basic assumptions. I mainly dealt with predicting actions and assigning responsibility (especially regarding punishment), and I described practical implications of this debate. In the last chapter, I reviewed a text that aims to inform legal professionals about the findings of science and prevent errors in understanding scientific material, which itself suffers from a lack of distinction between facts and philosophical assumptions. I called this the "deterministic fallacy," when scientists treat their basic assumptions as scientific findings and determinism as a scientific fact.

In the terminology I presented above, the article I reviewed contains warnings about problems of type A, while disturbingly ignoring the essential problem of type B. The statements in it seem to be full of humanism and scientific modesty, while recognizing the uniqueness of man in relation to the rest of nature, but in fact implicitly assume the exact opposite. If this is the "scientific" picture presented to jurists, they will probably accept it. A jurist facing independent expert testimony is supposed to accept it. So what should we do when we come to determine the criminal responsibility of a person who acts under an impulse that cannot be conquered? After all, it is a "scientific fact" that every normative person also acts in the same way. In light of these things, can society still impose responsibility on one (the normative) and exempt the other (the pathological)? Logically, despite all the reservations in these articles, all the deterministic conclusions I described above are derived from such a picture. If this picture is correct, then a legislator or judge who imposes criminal liability on a person is doing so in contradiction to solid scientific facts. There is a systematic attempt here (unconsciously, of course) by various scientists and philosophers to turn a fundamental and accepted legal and philosophical doctrine and present it as an outdated and outdated anachronism, all under the guise of science.

My argument is that these firm assertions have no real scientific basis. This is an effective research paradigm, but certainly not a factual-scientific assertion. The question of determinism in the scientific realm is still open, although it seems that even renowned experts in their fields are not always aware of this. It is not right to hand over the determination of our philosophical and legal infrastructures to brain researchers or scientists in general, no matter how successful and talented they may be. Needless to say, I do not intend to accuse the authors of deliberate bias. This is a position based on scientific knowledge, but is flawed in philosophical terms. However, precisely because this is done innocently, the danger is so great: if four senior researchers in the field write this way in a guideline article intended for lawyers and present it as an innocent and impartial summary of the findings of science, who would not adopt it?![56]

[1] See for example Lior Detal "Dreams in the Air, Head in the Ground" The Marker 13.10.2013.

[2] See review by: Stephen Cave, There's no such thing as free will, The Atlantic (16.6.2106) (hereinafter: Cave).

For a translation of the review, see: Tomer Ben Aharon, "The Illusion of Free Will" slant 3.8.2016. alaxon.co.il/article/%7--/.

[3] Michael Abraham, The Science of Freedom: Do We Have Free Choice? Physics, Philosophy, and Neuroscience (Published by Yedioth Ahronoth and Hamed Books, 2013), (hereinafter: My Books).

[4] These are review articles that contain many additional references:

Brain Waves, Neuroscience and the Law (the Royal Society, December 2011)

Francis X. Shen, Neurolegislation: How US Legislators are Using Brain Science, Harvard Journal of Law & Technology Vol. 29, Number 2 (Spring 2016). [Shen below:]

Owen D. Jones, Joshua W. Buckholtz, Jeffrey D. Schall, & Ren'e Marois, Brain Imaging for Judges: An Introduction to Law and Neuroscience, Court Review – Vol. 50 (2014), pp. 44-52. [Jones hereinafter:]

Joseph J. Avery, Picking and Choosing: Inconsistent Use of Neuroscientific Legal Evidence, 81 Albany .Law Review, p. 941 (2018). [Avery below:]

[5] For example, inWikipedia The Hebrew has no entry dealing with neuroscience and law, compared to the English one, which includes several entries on this subject. I also found no publications in Hebrew on this subject (except for a few popular articles, most of which are translated. Some will be mentioned here).

[6] Dov Alexandrovich "Criminal Responsibility and the Psychiatrist" The attorney 25 697 (5729-5730).

[7] Above, chapter 3, the entire section is devoted to this point, but see especially chapter fourteen.

[8] Alumit Yishai "The Brain in Court" The person is allowed 14.10.2013. blogs.haaretz.co.il/alumitishai/56 (hereinafter: Yishai).

[9] It seems to me that even professional judges are not exempt from the penalty of such an ad scientificum fallacy. In this context, it is also worth seeing Prof. Alumit Yishai's article "Neurophilia: On the seductive charm of scientific explanations"  YNET– Digital, 6.9.2010. www.ynet.co.il/articles/0,7340,L-3950224,00.html And see also my book: Michael Avraham, God plays dice, pp. 205-6, Appendices 5-6 (Yediot Sfarim, 2011).

[10] Joshua Greene & Jonathan Cohen, For the Law, Neuroscience Changes Nothing and Everything, 359 phil. Transaction of The Royal Society London 1775, 1776 (2004). See ibid., p. 1784.

[11] I found two or three cases that did not require any real attention, because the findings of the brain scan were not conclusive. See, for example, T.P. (B.S. District) 1465-07-17 State of Israel v. Bookstein (Published in Nevo, 03.05.2018). For a comprehensive review of the situation in the United States in civil and criminal law, see Jones (above, p. 4), especially in the first notes.

[12] Above, Section 4, throughout the article.

[13] Above, Section 4.

[14] For a popular presentation of the possible relationships between the two components, see Richard Taylor's book Metaphysics Especially at the end of the second chapter (translated by Yael Cohen, 1983).

[15] On the nature of natural laws, see the encyclopedic entry  "Laws of Nature", in Iep (Internet Encyclopedia of Philosophy); my book (above, H.S. 3), in the second and third parts; Cave's review, (above, H.S. 2), and more. Although in quantum theory, which deals with the microscopic world, it is accepted that there is no determinism, I explained in my book (in the second part and especially in chapter thirteen) why this does not concern our discussion.

[16] The inverse relationship does exist. It is difficult to accept a position that advocates materialism and libertarianism at the same time. If man is all physics, then he is necessarily subject to the laws of physics and cannot deviate from them. A materialist view stems from determinism, but determinism is not necessarily based on materialism.

[17] In my book (above, p. 3), in the second part, I explained why there can be no explanations that attempt to introduce free will into physics (through chaos, quantum theory, or emergentism).

[18] See this in my book (above, 3), especially in the fourth and sixth chapters.

[19] See: Van Inwagen, P. Free Will Remains a Mystery, in R. Kane, The Oxford Handbook of Free Will, (Oxford: Oxford University Press, 2002, pp. 158-177).

[20] See this in my book (above, 3), in the sixth chapter.

[21] See below in the third chapter (in the section on the urge to conquer) a quote from Alexandrowitz.

[22] This is similar to the vitalist paradigm in biology (which assumes the existence of a non-material component in man) and the religious paradigm (that there is a God). Both of these, even if correct, do not contribute much to scientific understanding (because we are unable to offer predictions of them that will stand the test of refutation), but this does not mean that they are not correct. In both of these contexts, as well as in the matter of determinism, many confuse the effectiveness of the paradigm in the field of scientific research with its truth.

[23] For a more detailed description of everything said in this section and for the sources, see my book (above, 3), chapter fourteen.

[24] See, for example, Avery, above, p. 4 (already in the title).

[25] For a clear description and report on the findings of the experiment, see Assaf Ronal's article, "I want, therefore I exist," Haaretz, May 10, 2019, as well as Liad Modrik's own lecture on YouTube: "New Research on Free Choice": https://youtu.be/v0NG-caHAmwI will also note that Maoz says that his group decided to include a group of philosophers in the research, out of the feeling that experiments in this field are plagued by a philosophical misunderstanding on the part of the researchers (exactly as I noted in my book and at the beginning of the article here).

[26] In my book (above, 3), in chapter fourteen, I distinguished between several types of hesitations, for example: value-desire, value-value, and so on.

[27] In Talmudic terms, it can be said that "everything is in the hands of Heaven except the fear of Heaven" (Bavli, Moed Katan 16, 1a and parallels). Secular actions are in the hands of Heaven, meaning they are determined by the laws of nature in a deterministic manner, but actions that have a dimension of values are left to our discretion (we can decide and veto).

[28] In my book (above, 3), Chapter Fourteen, I explained why even future improvements to this experiment (such as Maoz and Modric's experiment) will probably not be able to decide the question of determinism.

[29] While this does not necessarily mean that dualism is incorrect, it does mean that the distinction between the two components of it is not as sharp as previously thought. Avery, supra note 4, at the end of the introduction to Part III, explains that this has implications for the legal application of the laws of evidence and the relevant amendments to the Constitution (the Fourth or Fifth), which depend on the question of whether brain scans are forensic evidence or whether they belong to the realm of testimony (see Avery, supra note 4, III.BC).

[30] See also Alexandrowitz, above, p. 6, at 698.

[31] A significant portion of Alexandrovich's article there is devoted to this question.

[32] For an exemplary description of this method, see: Eliezer Malkiel Will, freedom and necessity (Bar Ilan University, 2013), and my review of it: Michael Avraham "Book Review: Will, Freedom, and Necessity, Eliezer Malkiel" Size 21.2.2014 mida.org.il/2014/02/21.

[33] See the first chapter of my book (above, 3).

[34] See review in: Haynes SD, Rojas D & Viney W., Free Will, Determinism, And Punishment, Psychol Rep. Dec;93(3 Pt 2):1013-21 (2003).

[35] For a review, see, for example, Chaim H. Cohen. The trial Chapter Eight, Part 2 (Bialik Institute, Jerusalem, second and revised edition, 1997).

[36] See, for example, Alexandrowitz, above, p. 6, at p. 700 et seq., who also explains some of the implications.

[37] This is essentially the content of Alexandrowitz's words, ibid., on page 702.

[38] For a review, see, for example: H. Zeisel, The Deterrent Effect of Death Penalty: Facts v. Faith, in PB Kurland (ed.), The Supreme Court Review, pp. 317-343.

[39] This is in terms of the justification for punishment. As for the purpose of punishment, the libertarian also considers the effectiveness of the punishment, since if it is not effective, criminals probably do not learn to veto their criminal RPs. The purpose of punishment is not achieved. In my understanding, in the libertarian picture, retribution is also the purpose of punishment, not just the justification for it. In other words, the criminal deserves to suffer for his actions, and therefore even if the punishment is not effective, it should be imposed on him. Of course, the libertarian also prefers to achieve achievements through punishment, but in my understanding, this is not a condition for imposing punishment. The purpose of punishment – the suffering of the criminal (retribution) – is achieved even if there is no deterrence.

[40] I use this expression because it is common and familiar. Various criticisms have been raised about it, mainly following Section 34H of the Penal Law (Amendment No. 39), 1994, Section 348 (hereinafter: Section 34H of the Penal Law). In addition, I will not go into the details of diminished responsibility and the like here.

[41] There are two components that we must examine when granting exemption from criminal liability: (a) the person's perception of reality (including his ability to distinguish between good and evil); (b) the degree of his control (his ability to overcome and ensure that evil is not done). The McNaughton rules of the common law have been widely criticized for their focus on the first component and their neglect of the second. See, for example, Alexandrowitz, supra note 6, and Yaakov Bezek. Law and Psychiatry: The Criminal Responsibility of the Mentally Ill Beginning of Chapter Five (Kiryat Sefer, 1972). This criticism led to the enactment of Section 34H of the Penal Code, which requires both things. Assaf Toiv, in his article "The 'Clinical Condition' as the Central Criterion for Making Decisions in Questions from the Field of Mental Health in Israel" Courthouses 243 (5770), recommends ignoring the diagnostic dimension in which mental illness is determined, and focusing only on psychosis (i.e., the person's control at the moment of committing the offense).

[42] See, for example, Yaakov Bezek, ibid., throughout the fifth chapter.

[43] Although he ignores the necessary correction to the minds of those around him. Punishment can do that too.

[44] For a short and popular overview in Hebrew, see: "Brain Imaging" Wikipedia he.wikipedia.org/wiki/_.

[45] In September 2013, a two-part documentary program called Brains on Trial was broadcast on the American public channel PBS, in which actor Alan Alda visited several brain research centers and interviewed researchers on various aspects of brain research in the trial, and even participated in brain scans himself. For a review of the main findings presented there, see also Yishai, supra note 8.

[46] Functional magnetic resonance imaging (fMRI) purports to detect lies based on what is happening inside the brain itself rather than on measures of anxiety, such as changes in heart rate, blood pressure, or breathing, used in the standard polygraph. See also Avery, supra note 4, II.B.3.

[47] See Gary Stix, Can fMRI Really Tell If You're Lying? Will brain scans ever be able to tell if you're really being deceptive?, Scientific American (1.8.2008) (hereinafter: Stix). Also in Yishai, above H.S. 8, and in Avery, above H.S. 4, Part II.A.3.

[48] See, for example, Stix, ibid., and Yishai, supra note 8. Also, see the article by American Judge Andreas Kursten (Court of Appeals for the Armed Forces in Washington): Opinion: Brain Scans in the Courtroom, The Scientist (23/11/2015) https://www.the-scientist.com/news-opinion/opinion-brain-scans-in-the-courtroom-34464For an interesting description of the skeptical attitude of an American judge, See Michael S. Gazzaniga "Imaging - Neuroscience in the Courtroom" Scientific American Israel 23.7.2011 www.sciam.co.il/archive/archives/3731.

[49] Project website online: http://www.lawneuro.org/ Contains many relevant materials.

[50] And the state of the environment and the stimuli that acted on it, but these are only the stimuli of the brain state.

[51] In the last chapter I will show examples of this.

[52] In the deterministic picture, in such a situation the expert would be able to say with certainty what the person would do.

[53] Above, Section 4.

[54] See the ninth chapter of my book (above, 3).

[55] This is another expression of ignoring sober libertarianism, as we saw in Van Inwagen (above, p. 19).

[56] I will mention again the warnings of Alum Yishai and Farahani, cited at the beginning of the article (see above, next to H.S. 8), against the reluctance of laypeople to scientific material and the lack of awareness that it is saturated with interpretations and assumptions.