We are More Than our Executive Functions: on the Emotional and Situational Aspects of Criminal Responsibility and Punishment

Abstract

In Responsible Brains (MIT Press, 2018), Hirstein, Sifferd and Fagan apply the language of cognitive neuroscience to dominant understandings of criminal responsibility in criminal law theory. The Authors make a compelling case that, under such dominant understandings, criminal responsibility eventually ‘translates’ into a minimal working set of executive functions (MWS) that are primarily mediated by the frontal lobes of the brain. In so arguing, the Authors seem to unquestioningly accept the law’s view of the “responsible person” as a mixture of cognitive capacities and mechanisms—thereby leaving aside other fundamental aspects of individuals’ human agency. This commentary article offers a critique of the Authors’ rationalist and individualist approach. The critique can be summarized through the following claim: We humans, as responsible beings, are more than our executive functions. This claim articulates through four main points of discussion: (1) role of emotions in moral judgments and behavior; (2) executive functions and normative criteria for legal insanity; (3) impact of adverse situational factors on executive functions; (4) Authors’ account of punishment and, especially, rehabilitation.