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From Is to Ought: How Scientific Research in the Field of Moral Cognition Can Impact the Criminal Law


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Rapid technological advances in the field of neuroscience and cognitive psychology are claiming to have solved the millennia-old puzzle of moral cognition. If true, our societal structures – and with that the criminal law – would be gravely impacted. This paper concerns itself with four distinct theories stemming from the disciplines above, taking an in-depth look at the Dual Process Theory by JOSHUA GREENE and juxtaposing the findings to the consequentialist and retributivist theories of punishment present in the American Criminal Law Doctrine.
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From Is to Ought
How Scientific Research in the
Field of Moral Cognition Can
Impact the Criminal Law*
Rapid technological advances in the field of neurosci-
ence and cognitive psychology are claiming to have
solved the millennia-old puzzle of moral cognition. If
true, our societal structures – and with that the
criminal law – would be gravely impacted. This
paper concerns itself with four distinct theories stem-
ming from the disciplines above, taking an in-depth
look at the Dual Process Theory by JOSHUA
GREENE and juxtaposing the findings to the conse-
quentialist and retributivist theories of punishment
present in the American Criminal Law Doctrine.
Table of Contents
I. Preface 2!
A. Historical Classification 2!
B. Terminology and Methodology 3!
II. Cognitive Account 4!
A. The Stage Model 4!
This paper was initially submitted as a Bachelor
Thesis for a seminar by Prof. Matthias Mahl-
mann (UZH) and Prof. Stephen J. Morse (UP-
enn) in December 2018, Zürich. I am indebted
to Famke for her continuous support, without
which I could not be here.
Levin Sinan Güver, BLaw (University of Zur-
B. Requirements for Moral Development 5
C. The Stages of Moral Development 5
D. Mentalism and the Universal Moral
Grammar Theory 6!
III. Emotive Account 7!
A. Moral Dumbfounding 7!
B. The Social Intuitionist Model 7!
IV. Dualistic Account 8!
A. Approach 8!
B. Results 9!
C. The Dual-Process Theory 10!
V. Foundation of the Criminal Law 10!
A. Purpose 10!
B. Theories of Punishment 11!
C. The Normative Impact of Science 11
VI. Direct Approach to Rejecting
Retributivism 12!
A. Linking Emotion and Deontology 12
B. Linking Deontology and Retributivism
C. The Deontic Core of the Mental
Gizmo Thesis 14!
D. Deontology as Heuristics 15!
E. Interim Conclusion 15!
VII. Indirect Approach to Rejecting
Retributivism 16!
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GÜVER, From Is to Ought
A. Presupposed Picture of the Law 16!
B. The Problem of Free Will 16!
C. The Curious Case of Mr. Puppet 17!
1. Approaching from Neuroscience 17
2. Approaching from Physics 18!
D. The Curious Case of Mr. Puppet
Continued 18!
VIII. Conclusive Remarks 19!
IX. Appendix 21!
I. Preface
«In every system of morality, which I have hitherto
met with, I have always remark’d, that the author
proceeds for some time in the ordinary way of reason-
ing, and establishes the being of a God, or makes
observations concerning human affairs; when of a
sudden I am surpriz’d to find, that instead of the
usual copulations of propositions, is, and is not, I
meet with no proposition that is not connected with
an ought, or an ought not. This change is impercep-
tible; but is, however, of the last consequence. For as
this ought, or ought not, expresses some new relation
or affirmation, ‘tis necessary that it shou’d be ob-
serv’d and explain’d; and at the same time that a
reason should be given, for what seems altogether
inconceivable, how this new relation can be a deduc-
tion from others, which are entirely different from
A. Historical Classification
Views on moral cognition have undergone
several changes throughout the course of
history, the conflict between reason and
emotion being firmly rooted in its core. An-
cient philosophers deemed it «a conflict
between divinity and animality».3 SOKRATES
2HUME DAVID, A Treatise of Human Nature,
1739, L. A. Selby-Biggie (ed.), 1896, Book III,
Part I, Section I.
3HAIDT JONATHAN, The Emotional Dog and Its
Rational Tail: A Social Intuitionist Approach to
Moral Judgement, in: Psychological Review, vol.
108, no. 4, 2001, p. 815.
traced the origin of moral judgement back to
the daimonion, an inner voice guiding our
sense of morality.4 In the 18th century, DA-
VID HUME questioned rationalism and
swung the pendulum in favor of an emoti-
vistic approach,5 claiming moral judgement
to be the result of «some internal sense or
feeling, which nature has made universal to
the whole species».6 In an attempt to refute
HUME,7 IMMANUEL KANT created his ration-
alist ethical theory, arguing moral judgement to
be the result of practical reason guided by
the categorical imperative.8
This domain once exclusive to what we
would now deem «armchair philosophers»9
4PLATO, Apology, F. J. Church (trans.), 1963, 31
c, d.
5Maintaining the basic position that «the ultimate
ends of human actions can never [...] be ac-
counted for by reason, but recommend them-
selves entirely to the sentiments and affections
of mankind», HUME DAVID, An Enquiry Con-
cerning the Principles of Morals, 1777, prod. J.
Mamoun, C. Franks, 2010, Appendix I, Section
6HUME (Fn. 5), Appendix I, Section I.
7Despite their paradigmatic differences, KANT
held HUME in high regard, going as far as saying
HUME awakened him from his «dogmatic slum-
ber», KANT IMMANUEL, Prolegomena to Any
Future Metaphysics, 1783, G. Hatfield (trans. a.
ed.), 2004, XIV.
8One could have a far-ranging discussion on
whether KANT created or discovered the categorical
imperative. For its three versions, cf. KANT IM-
MANUEL, Grundlegung zur Metaphysik der Sit-
ten, 1785, in: I. Kant, Akademieausgabe von
Immanuel Kants Gesammelten Werken, Presus-
sische Akademie der Wissenschaften (ed.),
vol. IV, 1911, p. 421, 429, 437.
9Courtesy of MAHLMANN MATTHIAS, Mind and
Rights: Neuroscience, Philosophy, and the
Foundations of Legal Justice, in: M. N. S. Sellers
(ed.), Law, Reason and Emotion, 2017, p. 121
fn. 151. While one might argue that the term
cannot be applied to philosophers before certain
technological advances claiming philosophy
was a purely mental domain due to the inability
to conduct wide-scale research –, it is important
to keep in mind that studies are just one of many
approaches towards empirical evidence and the-
ories have been refined through observation
since ancient times. One can still ponder wheth-
er the great minds of the past would have made
use of the tools we have at our disposal today
(for example fMRI scans) or if they would have
regarded certain questions and domains to be
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GÜVER, From Is to Ought
became part of the multidisciplinary empiri-
cal movement in the late 19th century, urg-
ing psychologists to «abandon their arm-
chairs and go into the laboratories» in an
attempt to unravel the mysteries of the hu-
man mind.10 Rapid scientific progress gave
rise to neuroscience, which claims to have
captured the problem of morality at its core
the human brain.11 But is neuroscience
really capable of opening up the black box
of cognition?
The following paper will be devoted to ap-
prehending the current state of psychologi-
cal and neuroscientific research on moral
cognition and applying the insights to the
American criminal law doctrine, structured
in style of the Is-Ought Problem HUME fa-
mously postulated.12 Commencing with a
brief definition of the topics at hand, it will
exempt of the scientific method, surrendering
only to the efforts of the mind.
10 HAIDT (Fn. 3), p. 816. It would be naive to think
that the research was purely empirical with no
prior theoretical considerations. E.g., KOHL-
BERG recognized the significant relationship be-
tween theory and empiricism, labelling it a «spi-
ral circularity», KOHLBERG LAWRENCE, A Cur-
rent Statement on some Theoretical Issues, in: S.
& C. Mogdil (eds.), Lawrence Kohlberg. Con-
sensus and Controversy, 1986, p. 505. GARZ
supplies an interesting comparison, highlighting
its similarity to a shoelace, «which is made up of
one piece, then separated and pulled apart at the
beginning of the threading only to be rejoined
later», GARZ DETLEF, Lawrence Kohlberg An
Introduction, 2009, p. 30.
11 Quoting MICHAEL GAZZANIGA, «98 or 99 per-
cent» of cognitive neuroscientists support the
reduction of the mind to the brain, cf. SNEAD
CARTER O., Neuroimaging and the «Complexi-
ty» of Capital Punishment, in: New York Uni-
versity Law Review, vol. 82, no. 5, 2007, p. 1279.
Taken one step further, eliminative materialism
seeks to reduce human action and behavior to
corresponding brain states. For a short over-
view, cf. LELLING ANDREW E., Eliminative Ma-
terialism, Neuroscience and the Criminal Law,
in: University of Pennsylvania Law Review, vol.
141, no. 4, 1993, p. 1476; PARDO MICHAEL S.,
PATTERSON DENNIS, Philosophical Foundations
of Law and Neuroscience, in: University of Illi-
nois Law Review, vol. 2010, no. 4, 2010,
p. 1245 f.
12 Crossing HUMES gap is the central hardship any
scientific theory has to overcome on its journey
to impacting philosophy and ethics. The original
quote is displayed below the preface.
narrow down to four distinct takes on moral
judgement, providing a comprehensive ac-
count of the Dual-Process Theory in par-
ticular a blend between neo-emotivistic13
and cognitivistic approaches. The findings
will be juxtaposed against foundational no-
tions of the criminal law, questioning its
underlying principles and highlighting the
current cleft between what is and ought to
B. Terminology and Methodology
When it comes to defining the terms morality
and moral judgement, there is as with most
topics up for philosophical debate no dis-
tinguished meta-definition. However, it is
possible to identify certain reoccurring ele-
ments and attempt to construct one accord-
ingly. Such conceivable attempt may look
like this:
Morality is a [universal] system of principles and
values, distinguishing between good and bad acts.
Moral cognition is the individual’s ability to tap into
that system, constituting moral judgement and inter-
nally nudging the individual towards the moral act.14
13 To borrow a term from MAHLMANN MATTHIAS,
Ethics, Law and the Challenge of Cognitive Sci-
ence, in: German Law Journal, vol. 8, no. 6,
2007, p. 577.
14 This definition is constructed intentionally broad
and incorporates elements from several authors,
cf. MAHLMANN MATTHIAS, Rechtsphilosophie
und Rechtstheorie, vol. 4, 2017, p. 286; GRAF
TILMAN, Ethik und Moral im Grundgesetz:
Grenzen der Moralisierung des Verfassungs-
rechts, vol. 285, 2017, p. 43 f.; GERT BER-
NARD/GERT JOSHUA, The Definition of Morali-
ty, in: E. N. Zalta (ed.), The Stanford Encyclo-
pedia of Philosophy, 2017; TURIEL ELLIOT, The
Development of Social Knowledge: Morality
and Convention, 1983. HAIDT, in contrast, de-
fines moral judgement as «evaluations (good
versus bad) of the actions or character of a per-
son that are made with respect to a set of virtues
held by a culture or subculture to be obligatory»,
HAIDT (Fn. 3), p. 817. This view does not pre-
suppose the existence of absolute moral values
and only bases itself on what we unarguably
know: their existence in our minds and influence
on our behavior. For a similar view, see TASSY
S./LE COZ P./WICKER B., Current Knowledge
in Moral Cognition can Improve Medical Ethics,
in: Journal of Medical Ethics, vol. 34, no. 9,
2008, p. 679. It should be noted that the idea of
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GÜVER, From Is to Ought
While morality constitutes the system on a
normative scale, moral cognition and moral
judgement can be regarded as the intricate
processes that take place in the individual’s
mind. These processes are not limited to a
priori reasoning and fall under the scrutiny of
the scientific method.15 The inquiry process
is divisible into two stages. First, the subjects
are supplied with moral stimulus through
confrontation with moral dilemmas16 – situa-
tions in which opposing duties are pitted
against each other, making it impossible to
adhere to one without neglecting the other.17
The second stage aims to capture the moral
response in a format susceptible to further
evaluation. This is where the sentiments start
to diverge: whilst the psychologist might
focus on behavioral aspects, the neuroscien-
tist would consider brain scans to be the
decisive piece of evidence.18 A closer look at
subjective, individually manifesting morality
does not necessarily lead to a non-cognitivist
view of moral relativism; the alternatives will be
evident in light of the mentalist and universal
moral grammar theory in section II.D, cf.
MAHLMANN MATTHIAS, The Cognitive Founda-
tions of Law An Introduction to the Mentalist
Theory of Ethics and Law, in: H. Rottleuhner,
Foundations of Law, A Treatise of Legal Philos-
ophy and General Jurisprudence, repr. edt., vol.
2, 2007, p. 76.
15 The scientific method regards the empirical side
of the coin, concerning itself with the process of
acquiring information through observation and
experimentation. Empirical claims are used to
describe the is, as in the observable reality of the
situation, while normative claims concern them-
selves with how things should be, the ought,
cf. PARDO/PATTERSON (Fn. 11), p. 1220 f.
TRICIA, The Neurobiological Basis of Morality,
in: J. Illes, B. J. Sahakian (eds.), The Oxford
Handbook of Neuroethics, 2011, p. 34 f.
17 See ELSIGAN ALFRED, Gibt es «echte» morali-
sche Dilemmata? Das Trolley-Problem, 2014,
p. 13.
18 The most common method being functional
Magnetic Resonance Imaging (fMRI). Neuronal
activity and cerebral blood flow are coupled,
making it possible to deduce which brain areas
are in use through a procedure based on the
magnetic difference between oxygenated and
deoxygenated blood, cf. OWEN ADRIAN M.,
Functional Magnetic Resonance Imaging, Covert
Awareness, and Brain Injury, in: J. Illes, B. J. Sa-
hakian (eds.), The Oxford Handbook of Neuro-
ethics, 2011, p. 137; SCHLEIM STEPHAN, Über
four conceptually distinct theories is war-
II. Cognitive Account
A. The Stage Model
LAWRENCE KOHLBERG20 sought to con-
struct a cognitive-developmental framework
based on prior works of JEAN PIAGET,
combining academic psychology with soci-
ology, philosophy and anthropology.21
He conducted moral judgement interviews
in form of longitudinal studies spanning
seventeen years with (initially) eighty-four
boys ranging from age ten to sixteen from
different socio-economic groups, confront-
ing them with distinct moral dilemmas.22
One of these renowned moral dilemmas is
labelled the Heinz Dilemma:
Heinz’s wife is dying from a rare form of cancer. A
local druggist discovers the only known cure, but
charges Heinz more than he can afford. After ex-
einen möglichen normativen Beitrag der
Moralphysiologie, in: G. Sharifi (ed.), Brauchen
wir eine neue Moral?: Herausforderungen der
Ethik durch die Neurowissenschaften, 2011,
p. 183.
19 It has to be stressed that the following theories
do not provide an exhaustive account on the
current discourse of moral judgement they are
intended as a comprehensive overview.
20 LAWRENCE KOHLBERG was regarded as a lead-
ing figure in the cognitive revolution, cf. HAIDT
(Fn. 3), p. 816.
21 Cf. GARZ (Fn. 10), p. 26; ROTTMAN JOSHUA/
YOUNG LIANE, Mechanisms of Moral Devel-
opment, in: J. Decety, T. Wheatley (eds.), The
Moral Brain: A Multidisciplinary Perspective,
2015, p. 123.
22 Cf. GARZ (Fn. 10), p. 39 f. KOHLBERG was
subject to a lot of criticism, as he assumed moral
cognition to be uniform between the genders
an assumption he deeply regretted later on, cf.
GARZ DETLEF, Kohlberg zur Einführung, corr.
vol. 2, 2015, Appendix 9. For a further read on
KOHLBERGS gender bias, cf. WALKER LAW-
RENCE J., Progress and Prospects in the Psy-
chology of Moral Development, in: Merrill-
Palmer Quarterly, vol. 50, no. 4, 2004, p. 551 f.
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GÜVER, From Is to Ought
hausting every legal means, Heinz decides to break
into the store. Should Heinz steal the drug?23
In addition to the interviews, KOHLBERG
made use of a variety of survey methods,
such as evaluations from close peer groups
and tasks on role-taking.24 The interviews
were dedicated to bringing forth the sub-
ject’s most advanced form of reasoning, and
combined with the subsequent survey
methods sought to detect the underlying
deep structures behind moral development.25
B. Requirements for Moral Development
KOHLBERG’s work is centred around the
view of morality as an universal justice struc-
ture,26 concerning itself with the interde-
pendence of rights and responsibilities.27
23 Cf. GARZ (Fn. 10), p. 55. The dilemma contin-
ues with alternate scenarios aiming to capture
the subjects full scope of moral judgement.
24 Cf. GARZ (Fn. 10), p. 40.
25 Cf. GARZ (Fn. 10), p. 33. KOHLBERG based this
on a theory of competence inspired by NOAM
CHOMSKY, who differentiates between a sub-
jects linguistic competence and performance: the
competence is based on a theoretical, idealized
starting point, while the performance is his actu-
al, displayed use of language, cf. CHOMSKY
NOAM, Aspects of the Theory of Syntax, 1965,
p. 3 f. KOHLBERG thus did not limit himself to
the subjects performance, but sought after his
competence in an attempt to unravel innate deep
structures of moral judgement. For a comprehen-
sive overview, see GARZ (Fn. 10), p. 31 ff.
26 Regarding justice to be on the forefront of mo-
rality is not an unorthodox view. GIBBS claims
an adequate morality to require »both the right
and the good«, suggesting its foundation in em-
pathy and fairness, cf. GIBBS JOHN C., Moral
Development and Reality: Beyond the Theories
of Kohlberg, Hoffman, and Haidt, 2015, p. 7.
Similarly, MAHLMANN regards both altruism and
the «justice-as-proportional-equality-principle»
to constitute the foundational judgements of
morality, regarding empathy as a «central heuris-
tic tool» for moral judgement, cf. MAHLMANN
(Fn. 13), p. 587, 593 ff. KOHLBERG deemed the
universality aspect of special importance, con-
ducting his studies in various parts of the world.
27 Cf. GARZ (Fn. 10), p. 8. A similar view is held by
BAUMARD/SHESKIN, who regard morality as
questions concerning neither the good life, nor
supererogatory actions, but rather a contractual-
ists conception of proportioning the interests of
oneself and others, cf. BAUMARD NICOLAS/
He deems three characteristics central for
moral development:
(1) Innate universal social institutions such
as family, economy, law, and government.28
Adhering to these institutions requires the
ability to interchange perspectives through
empathizing processes, leading KOHLBERG
to conclude that both society and morality
are «a structure of interaction between the
self and other selves who are like the self,
but who are not the self».29
(2) Key concepts most notably justice
differentiating between various levels of
theoretical difficulty.30
(3) Social stimulation as the motor behind
moral development, achieved by partaking in
social events from institutions listed in (1).31
C. The Stages of Moral Development
Evaluating his results, KOHLBERG created a
framework consisting of six hard stages
increasing in sophistication which he
deemed vital for the development of moral
judgement.32 The individual can progress
SHESKIN MARK, Partner Choice and the
Evolution of a Contractualist Morality, in: J.
Decety, T. Wheatley (eds.), The Moral Brain: A
Multidisciplinary Perspective, 2015, p. 37. They
states that people are not bad utilitarians, failing
to maximise group welfare, but rather successful
contractualists in regards to the notion of allo-
cating welfare in a fair way, cf. BAUMARD/
SHESKIN, (Fn. 27), p. 39.
28 Cf. KOHLBERG, Stage and Sequence: The Cogni-
tive-Developmental Approach to Socialisation,
in: D. A. Goslin (ed.), Handbook of Socializa-
tion Theory and Research, 1969, p. 397.
29 KOHLBERG (Fn. 28), p. 398.
30 Justice can be defined «as the interaction of the
individual with its social environment in relation
to the reciprocity of rights and responsibilities»,
KOHLBERG (Fn. 28), p. 398. In its most elemen-
tary form, justice concerns one-on-one reciproc-
ity, transitioning (with scaling difficulty) to a fa-
milial, collective, and ultimately social level,
cf. GARZ (Fn. 10), p. 25. This will be apparent
when subsequently confronted with his stage
31 «The more the social stimulation, the faster the
rate of moral development», KOHLBERG
(Fn. 28), p. 402.
32 Hard stage models are to be differentiated from
soft stage models. The prior have four distinct
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GÜVER, From Is to Ought
these stages through logical, rational reason-
ing, transitioning from an egocentric pre-
conventional level to a sociocentric post-
conventional level.33 A schematic overview
of the mechanisms involved can be found in
Figure 1 (see Appendix).34
Preconventional Level35
Stage 1: Comprehension is oriented to im-
mediate punishment and obedience.
Stage 2: Instrumentally purpose-oriented,
«tit for tat».
Conventional Level
Stage 3: Reciprocal interpersonal expecta-
tions and relationships, sociological commu-
nicative role conditions.
Stage 4: Subject-subject relationships re-
placed by subject-system relationships, con-
formity with the law and social institutions.
Postconventional Level
Stage 5: Law as a social contract, the indi-
vidual’s role in the subject-system view.
Stage 6: Orientation on universal, moral
principles, derived through a thought exper-
characteristics: (1) qualitative differences, (2) hi-
erarchical integration, (3) fixed order of devel-
opment, and (4) clear distinguishability, cf.
GARZ (Fn. 10), p. 33 ff. For an alternate, slightly
modified account of the six stages (structured in
four schemas), cf. GIBBS (Fn. 26), p. 41, 60 ff.,
75 ff.
Current Formulation of Kohlbergs Theory and
a Response to Critics, vol. 8, no. 2, p. 1 f.
34 KOHLBERG regarded the underlying mecha-
nisms to be of cognitive nature, claiming that
»the moral force in personality is cognitive. Af-
fective forces are involved in moral decisions,
but affect is neither moral nor immoral. When
the affective arousal is channeled into moral di-
rections, it is moral; when it is not so channeled,
it is not. The moral channeling mechanisms
themselves are cognitive«, KOHLBERG LAW-
RENCE, From Is to Ought: How to Commit the
Naturalistic Fallacy and Get Away with It in the
Study of Moral Development, in: T. Mischel
(ed.), Cognitive Development and Epistemolo-
gy, 1971, p. 230 f.
35 The following account draws from GARZ
(Fn. 10), p. 3946.
iment similar to RAWLS veil of ignorance36
(here: «moral musical chairs»37).
The progression through the stages is corre-
lational to the subject’s age, and it can be
noted that most do not make the transition
to the postconventional level.38
D. Mentalism and the Universal Moral
Grammar Theory
A more recent cognitive approach can be
found in the mentalist theory.39 Morality, it
claims, is based on a higher set of universal
principles generating moral judgement, akin
to the higher language faculty manifesting
itself as spoken language.40 Drawing in large
parts from the works of JOHN RAWLS and
36 Cf. RAWLS JOHN, A Theory of Justice, rev. ed.,
1999 p. 118 ff.
37 Cf. KOHLBERG LAWRENCE, The Claim to Moral
Adequacy of a Highest Stage of Moral
Judgement, in: The Journal of Philosophy,
vol. 70, no. 18, 1973, p. 644.
38 Cf. GARZ (Fn. 10), p. 46. The stage model faces
several challenges: The observable phenomenon
of stage regression, a problematic Stage 4.5, the
lack of empirical evidence regarding Stage 6, and
a hypothesised cosmic Stage 7. For a deeper di-
ve, consult GIBBS (Fn. 26), Chapter 3, 4.
39 The mentalist theory is hereby regarded a cogni-
tive theory due to its hints towards the cognitive
nature of the moral faculty, cf. MAHLMANN
(Fn. 13), p. 580; DELTON ANDREW W./
KRASNOW MAX M., Adaptationist Approaches
to Moral Psychology, in: J. Decety, T. Wheatley
(eds.), The Moral Brain: A Multidisciplinary
Perspective, 2015, p. 21. However, it is concep-
tually distinct from other cognitive approaches,
40 Cf. MAHLMANN (Fn. 13), p. 579 f.; MAHLMANN
(Fn. 9), p. 123. The distinction between moral
competence and performance is essential, cf. CHOM-
SKY (Fn. 25); MAHLMANN (Fn. 14), p. 76;
Actors and the Moral Foundations of Intractable
Intergroup Conflict, in: J. Decety, T. Wheatley
(eds.), The Moral Brain: A Multidisciplinary
Perspective, 2015, p. 78; MIKHAIL JOHN,
Elements of Moral Cognition: RawlsLinguistic
Analogy and the Cognitive Science of Moral and
Legal Judgement, 2011, p. 51 ff. This is derived
from RAWLS linguistic analogy, cf. RAWLS, A
Theory of Justice, p. 40 ff.
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GÜVER, From Is to Ought
NOAM CHOMSKY, it sets the foundation for
a universal moral grammar.41
The universal moral grammar theory has
two distinct components. The moral grammar
component is based on the notion that every
natural language contains words to express
certain non-reduceable deontic operators,
which constitute the distinct framework of
the human mind and behavior.42 This moral
grammar is deemed universal because some
of its core elements, such as the moral ought,
or foundational principles of justice and
altruism, are regarded innate to the human
mind.43 This is derived from the poverty of
stimulus argument.44
III. Emotive Account
A. Moral Dumbfounding
JONATHAN HAIDT provides a diametrical
approach to cognitive models of morality.
Moral judgement, he claims, is a relativistic
phenomenon constructed by emotion and
41 Cf. MAHLMANN (Fn. 13), p. 579 f.; MIKHAIL
JOHN, Universal Moral Grammar: Theory,
Evidence, and the Future, in: Trends in
Cognitive Sciences, vol. 11, no. 4, 2007, p. 143;
DELTON, KRASNOW, Adaptationist Approaches,
p. 20.
42 Cf. MIHKAIL (Fn. 41), p. 144 ff.; MAHLMANN
(Fn. 9), p. 122. This innate moral faculty would
enable moral judgements such as impermissible,
permissible, and obligatory to be generated,
cf. DELTON/KRASNOW (Fn. 39), p. 21.
43 For a closer look at the mentioned ontogenesis
of morality, cf. MAHLMANN (Fn. 13), p. 605.
The term innate is to refer to a system that is
«largely pre-determined by the inherent structure
of the mind, but whose ontogenetic develop-
ment must be triggered and shaped by appropri-
ate experience and can be impeded by unusually
hostile learning environments», MIKHAIL
(Fn. 41), p. 144.
44 The poverty of stimulus argument states that if a
certain cognitive ability cannot be generated by
outside stimuli, «at least some of the cognitive
structures underlying this ability must be in-
born», MAHLMANN (Fn. 9), p. 133. Develop-
mental psychological studies revealed infants
and young children capable of making the mor-
al/conventional distinction, providing support
towards the inertness of the foundational prin-
ciples of morality, cf. DELTON/KRASNOW
(Fn. 39), p. 21.
society.45 He instigates the point by high-
lighting the phenomenon of moral dumbfound-
Julie and Mark are brother and sister. They are
traveling together in France on summer vacation
from college. One night they are staying alone in a
cabin near the beach. They decide that it would be
interesting and fun if they tried making love. At very
least it would be a new experience for each of them.
Julie was already taking birth control pills, but
Mark uses a condom too, just to be safe. They both
enjoy making love, but they decide not to do it again.
They keep that night as a special secret, which
makes them feel even closer to each other. What do
you think about that, was it OK for them to make
Most participants immediately proclaim the
act to be immoral, yet have a hard time justi-
fying this belief, ultimately resorting to
statements such as «I don’t know, I can’t
explain, I just know it is wrong».48 He criti-
cises KOHLBERG’s exclusive use of reason-
heavy dilemmas such as the Heinz dilemma,
categorizing them as moral reasoning tasks
which shroud the complete picture namely
one with «greater prominence to moral emo-
tions and [...] moral intuitions».49
B. The Social Intuitionist Model
Moral judgement,50 HAIDT claims, stems
from quick and automatic moral intuitions
45 Cf. GIBBS (Fn. 26), p. 1; TASSY/LE COZ/
WICKER (Fn. 14), p. 680.
46 This term originates from BJÖRKLUND F./
HAIDT J./SCOTT M., Moral Dumbfounding:
When Intuition Finds no Reason, Unpublished
Manuscript, 2000. They considers moral dumb-
foundedness to be «a state in which seeing-
thatconflicts with reasoning-why», BR-
KLUND/HAIDT/SCOTT (Fn. 46), p. 11.
47 HAIDT (Fn. 3), p. 814.
48 HAIDT (Fn. 3), p. 814; BJÖRKLUND/HAIDT/
SCOTT (Fn. 46), p. 10 f.; PRÉTÔT LAURENT/
BROSNAN SARAH, The Evolution of Morality: A
Comparative Approach, in: J. Decety, T.
Wheatley (eds.), The Moral Brain: A
Multidisciplinary Perspective, 2015, p. 14.
49 BJÖRKLUND/HAIDT/SCOTT (Fn. 46), p. 11.
50 He broadly defines moral judgement as «evalua-
tions (good versus bad) of the actions or charac-
ter of a person that are made with respect to a
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(Link 1 in Figure 2, see Appendix),51 whereas
cognitive moral reasoning52 serves the sub-
sidiary role of post-hoc justification
(Link 2).53 Additionally, he proposes that
moral judgement should be regarded as an
interpersonal process (Link 3, Link 4), put-
ting emphasis on the social and cultural in-
fluences, referring to moral emotions as
«those emotions that are linked to the inter-
ests or welfare either of society as a whole or
at least of persons other than the judge or
agent».54 These claims are purely descriptive,
giving concise account on how moral
judgement develops, not how it ought to de-
velop.55 For a complete overview of this
model and its intricacies, consult Figure 2.
HAIDT backs his social intuitionist model
with following four arguments:
(1) Empirical research has shown that «the
perception of a person or an event leads
set of virtues held to be obligatory by a culture
or subculture», HAIDT (Fn. 3), p. 817.
51 Moral intuition is regarded as «the sudden ap-
pearance in consciousness of a moral judgment,
including an affective valence (good-bad, like-
dislike), without any conscious awareness of
having gone through steps of search, weighing
evidence, or inferring a conclusion», HAIDT
(Fn. 3), p. 818.
52 Being the adversary to moral intuition, moral
reasoning is defined as a «conscious mental ac-
tivity that consists of transforming given infor-
mation about people in order to reach a moral
judgment», HAIDT (Fn. 3), p. 818. Only very
rarely does moral reasoning lead to reasoned
moral judgement (Link 5); it is rather the result
of ones intuition-based judgement (Link 2).
GREENE advocates a narrower definition of
moral reasoning, suggesting it to be a cognitive
process and creating a direct link between sub-
ject As and subject Bs capacity to reason, as
opposed to the indirect link of A influencing Bs
intuition (Link 3), cf. PAXTON JOSEPH M./
GREENE JOSHUA D., Moral Reasoning: Hints
and Allegations, in: Topics in Cognitive Science,
vol. 2, no. 3, 2010, p. 517, 525.
53 Cf. HAIDT (Fn. 3), p. 815, 818; GREENE JOSHUA
D., The Secret Joke of Kants Soul, in: W.
Sinnot-Armstrong (ed.), The Neuroscience of
Morality: Emotion, Brain Disorders, and Devel-
opment, vol. 3, 2008, p. 36.
54 HAIDT JONATHAN, The Moral Emotions, in: R.
J. Davidson, K. R. Scherer, H. H. Goldsmith
(eds.), Handbook of Affective Sciences, 2003,
p. 853.
55 Cf. HAIDT (Fn. 3), p. 815.
instantly and automatically to a moral
judgement without any conscious reflection
or reasoning», operating through the intui-
tive judgement link (Link 1).56
(2) Only under very specific conditions is it
possible to partake in reasoned judgement
and private reflection (Link 5 and 6); in a
conventional setting, post-hoc reasoning is
deployed (Link 2).57
(3) Post-hoc reasoning (Link 2) is not a
memory of the cognitive processes underly-
ing behavior, but rather a post-hoc justifica-
tion based on a priori moral theories, as is evi-
dent from people not being able to identify
the reasoning underlying their decision.58
(4) Illustrated on the basis of psychopaths,
moral emotions unlike moral reasoning
seem to supply the necessary ought, dictating
moral behavior.59
IV. Dualistic Account
A. Approach
Around the year 2001, efforts were made to
locate a moral module in the brain, but they
have since failed.60 In what soon turned out
56 Cf. HAIDT (Fn. 3), p. 818.
57 Cf. HAIDT (Fn. 3), p. 820 ff. HAIDT concedes
that the mind has dual-processing properties in
(1), yet argues that reasoned judgement rarely
takes place in everyday scenarios, cf. GREENE
(Fn. 53), p. 36. In comparison, the DPT regards
moral reasoning as a «ubiquitous feature of mor-
al common sense», cf. PAXTON/GREENE
(Fn. 52), p. 513.
58 HAIDT defines a priori moral theories as a «pool of
culturally supplied norms for evaluating and crit-
icising the behavior of others», HAIDT (Fn. 3),
p. 822. According to HAIDT, reasoning is not
only post-hoc, but also biased through «coher-
ence motives» and «relatedness motives», HAIDT
(Fn. 3), p. 821 f. See also PRÉTÔT/BROSNAN
(Fn. 48), p. 14 f.
59 Cf. HAIDT (Fn. 3), p. 823 ff. It can be observed
that moral action leads to internal gratification as
a reward for altruistic behavior. Upon closer in-
spection, a paradoxical property of morality be-
comes clear: moral actions result in the satisfac-
tion of the moral agent only if said agent intends
the well-being of others, as opposed to his own,
cf. MAHLMANN (Fn. 14), p. 293 f.
60 It is now widely believed that the neural mecha-
nisms behind moral cognition also participate in
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to be a hallmark study, GREENE et al. sought
out to find the neural mechanisms behind
moral judgement.61
Subjects were presented a wide array of
moral and non-moral dilemmas and ob-
served through the lens of an fMRI scan.
The moral dilemmas were divided into per-
sonal and impersonal categories,62 involving
variations of the so-called Trolley Problem.63
The standard trolley scenario is as follows:
You are at the wheel of a runaway trolley quickly
approaching a fork in the tracks. On the tracks
extending to the left is a group of five railway work-
men. On the tracks extending to the right is a single
railway workman. If you do nothing the trolley will
proceed to the left, causing the deaths of the five
workmen. The only way to avoid the deaths of these
workmen is to hit a switch on your dashboard that
will cause the trolley to proceed to the right, causing
the death of the single workman. Is it appropriate for
you to hit the switch in order to avoid the deaths of
the five workmen?64
other capacities, cf. GREENE JOSHUA D./HAIDT
JONATHAN, How (and Where) does Moral
Judgement Work?, in: Trends in Cognitive Sci-
ences, vol. 6, no. 12, 2002, p. 523.
61 GREENE J. D. et al., An fMRI Investigation of
Emotional Engagement in Moral Judgement, in:
Science, vol. 293, no. 5537, 2001.
62 Personal dilemmas involve actions that « (a)
could reasonably be expected to lead to serious
bodily harm, (b) to a particular person or a
member or members of a particular group of
people, (c) where this harm is not the result of
deflecting an existing threat onto a different par-
ty», GREENE et al. (Fn. 61), p. 2107 f. en. 9.
63 Its modern form was first introduced by FOOT
PHILIPPA, The Problem of Abortion and the
Doctrine of the Double Effect, in: Oxford Re-
view, no. 5, 1967, p. 6. The problem had been
formulated before, a minor difference being the
use of a train instead of a trolley, cf. WELZEL
HANS, Zum Notstandsproblem, in: Zeitschrift
für die gesamte Strafrechtswissenschaft, vol. 63,
no. 1, 1951, p. 51.
64 Cf. Supplemental Data to GREENE et al.
(Fn. 61). There has been criticism as to why this
variant suggesting the subject to be at the
wheel of the trolley was regarded as imperson-
al and not personal, cf. PARDO MICHAEL S./
PATTERSON DENNIS, Minds, Brains, and the
Law: The Conceptual Foundations of Law and
Neuroscience, 2014, p. 59 f.
In the footbridge variant,65 there is no longer a
fork and the switch is replaced by a large
man on a footbridge over the tracks. It is
then questioned whether it is appropriate to
push the stranger off the bridge onto the
tracks below, stopping the trolley with his
large body and saving the five workers.
B. Results
In the standard trolley scenario, most partici-
pants regarded it appropriate to flip the
switch.66 In the footbridge scenario, however,
most people chose not to push the large
man.67 The fMRI scans revealed the footbridge
scenario to recruit subject’s emotions to a
higher degree, while judgements concerning
the standard trolley scenario were found to be
more closely resembling those of non-moral
dilemmas.68 Subject’s reaction times showed
emotionally incongruent responses in the
moral-personal condition (e.g., when partici-
pants responded «appropriate» to the foot-
bridge scenario) to take longer than emotion-
ally congruent responses. The other two
conditions (moral-impersonal and non-
moral) exhibited a trend in the opposite di-
A new set of experiments further distin-
guished between easy moral-personal di-
lemmas and difficult moral-personal dilem-
mas based on subject’s reaction times.70 Fo-
65 This variant was first introduced by THOMSON
JUDITH JARVIS, Killing, Letting Die, and the
Trolley Problem, in: The Monist, vol. 59, no. 2,
1976, p. 207 f.
66 GREENE et al. (Fn. 61), p. 2105.
67 GREENE et al. (Fn. 61), p. 2105.
68 GREENE et al. (Fn. 61), p. 2107. Decisions in the
moral-personal condition were coupled with
higher activation of brain areas associated with
emotion (Brodmann Area 9, 10, 31, 39) and sig-
nificantly lower activation in areas associated
with working memory (BA 7, 40, 46) compared
to decisions in the moral-impersonal and non-
moral conditions. For a compilation of alternate
findings, cf. SCHLEIM (Fn. 18), p. 189 ff.
69 GREENE et al. (Fn. 61), p. 2107.
70 GREENE J. D. et al., The Neural Bases of Cogni-
tive Conflict and Control in Moral Judgement,
in: Neuron, vol. 44, no. 2, 2008, p. 392. The aim
was to »test the hypothesis that different pat-
terns of neural activity in response to the same
class of moral dilemma are correlated with dif-
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GÜVER, From Is to Ought
cusing solely on the difficult moral-personal
dilemmas, they found increased dorsolateral
prefrontal cortex activity (associated with
cognitive control) when participant’s chose
«appropriate» as opposed to «inappropriate»;
a choice they consider to be in line with utili-
tarian decision making.71
C. The Dual-Process Theory
The findings were compiled into a theory
coined the Dual-Process Theory: moral cog-
nition, so the Dual-Process Theory, stems
from both intuitive emotional responses and
more controlled cognitive responses.72 In
special situations as is the case with moral
dilemmas such as the trolley problem they
play competing roles.73 This process has
been visualised in Figure 4 (see Appendix).
GREENE compares the human brain to an
SLR camera, which can operate in two com-
ferences in moral decision-making behavior«,
GREENE et al. (Fn. 70), p. 390.
71 GREENE et al. (Fn. 70), p. 391 f. «Judgements
that maximize aggregate welfare» and «accepting
a personal moral violation in favor of a greater
good» were named as utilitarian decisions,
GREENE et al. (Fn. 70), p. 390, 392. Contradicto-
ry results regarding the reaction times and
DLPFC activity have since been found,
Who Shalt not Kill? Individual Differences in
Working Memory Capacity, Executive Control,
and Moral Judgement, in: Psychological Science,
vol. 19, no. 6, 2008, p. 556.
72 Cf. GREENE et al. (Fn. 61), p. 2107. GREENE
clarifies the dual in Dual-Process to concern the
type of processing, as cognitive outputs typically
mirror their underlying processes, cf. GREENE
JOSHUA D., Beyond Point-and-Shoot Morality:
Why Cognitive Neuroscience Matters for Ethics,
in: Ethics, vol. 124, no. 4, 2014, p. 697.
73 Cf. GREENE JOSHUA D., The Cognitive Neuro-
science of Moral Judgement and Decision Mak-
ing, in: J. Decety, T. Wheatley (eds.), The Moral
Brain: A Multidisciplinary Perspective, 2015,
p. 203 f. An alternate explanation was provided
by MIKHAIL in form of an act-tree, differentiat-
ing between means and side-effects akin to the
Doctrine of Double Effect (Figure 3, see Appen-
dix). This explanation is consistent with at least
twelve variations of the trolley problem, cf. MI-
KHAIL (Fn. 41), p. 146 ff.; MIKHAIL (Fn. 40),
p. 115 f., 118 ff.
plementary modes (automatic and manual).74
It is supposed to exemplify an «elegant solu-
tion to the ubiquitous design problem,
namely, the trade-off between efficiency and
flexibility».75 The automatic mode is subcon-
scious, guided by reflexes and intuition, serv-
ing us well in our day-to-day life; the under-
lying processes are emotional.76 The manual
mode is dedicated to general-purpose rea-
soning; it operates on a conscious level and
allows us to recognize and adhere to certain
The line between conceptual claims and
descriptive conclusions is blurred in regards
to the Dual-Process Theory, with GREENE
stating to intend only the latter.78 The nor-
mative content that follows will be evaluated
V. Foundation of the Criminal Law
A. Purpose
The criminal law can best be characterised as
an act-guiding system, deployed to maintain
certain societal standards.79 It rests on sever-
al pillars and underlying maxims, some of
which have explicitly been codified in Sec-
tion 1.02 of the Model Penal Code.80
74 This is used as an analogy for the Dual-Process
Theory, cf. GREENE (Fn. 72), p. 696.
75 GREENE (Fn. 72), p. 696. MIKHAIL acknowledg-
es this problem, but deems moral judgement to
be on a level of complexity where simple deon-
tological and consequentialist principles do not
provide sufficient explanation, cf. MIKHAIL
(Fn. 40), p. 103.
76 GREENE (Fn. 72), p. 696.
77 GREENE (Fn. 72), p. 696 f. «In short, manual
mode thinking is the kind of thinking that we
think of as thinking», Greene (Fn. 72), p. 697.
78 See GREENE et al. (Fn. 61), p. 2107; GREENE et
al. (Fn. 70), p. 398. He regards it «an empirical
hypothesis concerning a general trend rather
than a conceptual claim», GREENE J. D.,
E., COHEN J. D., Cognitive Load Selectively
Interferes with Utilitarian Moral Judgement, in:
Cognition, vol. 107, no. 3, 2008, p. 1145, fn. 1.
79 Cf. WILSON WILLIAM, Criminal Law, 5. edt.,
2014, p. 4.
80 The guiding principle being the prevention of
harm to individual or public interests, as evident
from Section 1.02(1)(a) MPC. Other functions
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The resemblance to morality becomes ap-
parent at first glance. Both the criminal law
and morality constitute a system of values
designated to influence behavior.81 However,
there are discrepancies regarding their tools of
guidance. While the criminal law imposes a
wide array of external, government-induced
sanctions for failing to follow conduct,82
morality avails to inward-facing, psychologi-
cal means of punishment.83
Justifying the necessary measures to fulfil the
criminal law’s act-guiding purpose has re-
sulted in the development of punishment
theories, most prominently those of conse-
quentialism and retributivism.84
B. Theories of Punishment
The consequentialist theory justifies pun-
ishment by its beneficiary future conse-
quences, namely deterrence and incapacita-
tion; punishment is regarded as a prima facie
wrong, only justified in light of excluding
greater evil.85 Built on utilitarian soil, the
forthbringing of greater social benefit than
social harm provides sole grounds for justi-
On retributivist grounds, punishment is re-
garded as the justified reaction to wrong-
doings of the actor, regardless of its future
include rehabilitation, retribution and restora-
81 Cf. MORSE STEPHEN J., Criminal Law and
Common Sense: An Essay on the Perils and
Promise of Neuroscience, in: Marquette Law
Review, vol. 99, 2015, p. 50, fn. 32.
82 Cf. WILSON (Fn. 79), p. 6 ff.
83 Cf. MAHLMANN (Fn. 14), p. 293 f.
84 Cf. WILSON (Fn. 79), p. 53 ff.; PARDO/
PATTERSON (Fn. 64), p. 179 f.
85 «All punishment in itself is evil. [...] if it ought at
all to be admitted, it ought only to be admitted
in as far as it promises to exclude some greater
evil», BENTHAM JEREMY, An Introduction to the
Principles of Morals and Legislation, repr., 1907,
COHEN JONATHAN, For the Law, Neuroscience
Changes Nothing and Everything, in: Philo-
sophical Transactions of the Royal Society B,
vol. 359, no. 1451, 2004, p. 1776.
86 Cf. WILSON (Fn. 79), p. 58; PARDO/
PATTERSON (Fn. 64), p. 183 f.
benefits.87 It has intrinsic worth and is to be
proportioned to the desert of the actor.88
There are also mixed accounts, incorporat-
ing elements of both consequentialism and
retributivism. Most notably, HART distin-
guishes between three justificatory issues,
namely (1) the aim, (2) subject, and (3) inten-
sity of punishment.89 While the aim ought be
utilitarian (1), he deems it impermissible to
deliberately punish the innocent (2) or ex-
cessively punish the guilty (3).90
Impacting our understanding of these two
philosophical strands would lead to a fun-
damental change in the criminal law doc-
trine, and it is the science of moral cognition
namely the Dual-Process Theory that
claims to be able to do just that.91
C. The Normative Impact of Science
The issue at hand is as follows: the scientific
method can reveal the way things are, yet this
observation states not what ought to be.92
Assuming the Dual-Process Theory to be a
true account of the operations underlying
moral judgement, it is not yet clear how this
87 GREENE (Fn. 53), p. 50 f.; PARDO/PATTERSON
(Fn. 64), p. 184 f.; DUFF ANTHONY/HOSKINS
ZACHARY, Legal Punishment, in: E. N. Zalta
(ed.), The Stanford Encyclopedia of Philosophy,
88 Cf. WILSON (Fn. 79), p. 54. One ought to pun-
ish the criminal because he deserves it, see
KANT IMMANUEL, The Metaphysics of Ethics,
1796, J. W. Semple (trans.), H. Calderwood (ed.),
1886, p. 104. For a proposal towards a wholly
desert-based criminal code, see ALEXANDER L./
FERZAN K. K./MORSE S. J., Crime and
Culpability: A Theory of Criminal Law, 2009.
89 Cf. HART H. L. A., Punishment and Responsibil-
ity, 1968, p. 127.
90 Cf. HART (Fn. 89), p. 127.
91 There are many dissenting opinions, most nota-
bly that of STEPHEN MORSE, who believes the
law ought not be phased by recent neuroscien-
tific findings, cf. MORSE STEPHEN J.,
Neuroethics: Neurolaw, in: University of
Pennsylvania Law School, Public Law Research
Paper no. 17/9, 2017, p. 22. However, he con-
curs that if science were able to fundamentally
impact those foundational notions, the criminal
law ought take notice, cf. MORSE (Fn. 91), p. 45.
92 Recall HUMES dictum, quoted below the pref-
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leads to a normative conclusion, and if it
does, to which.
When it comes to changing the criminal law
doctrine, (at the very least) three arguments
have to be supplied. First, empirical findings
(in this case the fMRI results) need to be
linked to a mantling theory (Dual-Process
Theory). A further argument needs to con-
nect said theory to a normative claim, e.g.
deontology being faulty. The criminal law
can be reached when deontology is linked to
retributivism. Alternatively, the empirical
evidence could point towards free will being
an illusion, and the criminal law could be
reached through subsequent linking of free
will to retributivism.
In both examples, the is-ought barrier is
seemingly crossed. How can the conclusion
»the criminal law ought not punish in retrib-
utivist terms« be reached from mere brain
scans? The answer is hidden in the modali-
ties of said ought. It is used as a shorter form
of »should do XY because it is the right thing
to do«.93 There is a certain belief component
attached, which in turn has to be based on
something. For example, the normative
claim «you ought not punch others» means
«you should not punch others because it is
the wrong thing to do».94 This can be reduced
to the belief that punching others is wrong
because it causes harm to them.95 If science
(or any other form of empirical proof) were
to show that getting punched by others is
beneficial to one’s physical health and men-
tal well-being (say, by awakening dormant
healing abilities and causing the releasing
dopamine and serotonin), that normative
claim could be considered largely debunked.
93 This «right» is not to be understood in terms of
justice, as it is debatable whether acting just is an
imperative property of morality. Rather, «right»
is synonymous to «correct in regards to ones
conviction» (as it is also debatable whether there
are any universally true/right/correct notions of
94 «Wrong» does not have to equal «bad» if the
normative claim above was postulated as a uni-
versal law. A punch can be «good», e.g. as self-
defence, yet it would still be regarded as
95 The moral relativist might object and ask why
reducing harm is desirable in the first place.
Empirical observations that verify or falsify
foundational notions of normative claims
thus have an indirect influence on the claim
VI. Direct Approach to Rejecting
A. Linking Emotion and Deontology
GREENE observes that when decisions are
made with cognitive97 regions of the brain,
they result in characteristically consequen-
tialist judgement; when it comes to judge-
ment that is in line with characteristically
deontic principles namely being justified in
terms of rights and duties the areas of the
brain responsible for emotive responses are
Going back to the camera example, he con-
siders this dichotomy between the automatic
and manual mode to highlight that both
have their respective strengths and weak-
nesses and should be used accordingly.99 The
automatic mode is fast and efficient, yet re-
quires prior trial-and-error experiences to
shape it, lest its well-functioning would be
96 This thought is also shared by SINGER, who
suggests that scientific advances »do not them-
selves imply any normative conclusions, but
[they] undermine some conceptions of doing
ethics which themselves have normative conclu-
sions«, SINGER PETER, Ethics and Intuitions, in:
Journal of Ethics, vol. 9, no. 3/4, 2005, p. 349.
97 Within the boundaries of the DPT, the term
cognitive is not to be understood synonymous to
information processing, as emotions also involve in-
formation processing. Rather, it is used as an an-
tonym to emotion, in a sense that it does not suc-
cumb to automatic behavioral responses, involv-
ing an unbiased reasoning process, cf. GREENE
(Fn. 53), p. 40.
98 Cf. GREENE (Fn. 73), p. 203; GREENE (Fn. 53),
p. 37 ff. His terminological use of consequential-
ism and deontology is not congruent with stand-
ard philosophical usage, which is why he refers
to it as «characteristically consequentialist» and
«characteristically deontological». A statement is
«characteristically consequentialist» when it is
justified by utilitarian cost-benefit reasoning and
harder to justify in deontological terms, and vice
versa (with «characteristically deontological»
judgement being justified in terms of rights and
duties), cf. GREENE (Fn. 72), p. 699 f.
99 Cf. GREENE (Fn. 72), p. 714.
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GÜVER, From Is to Ought
akin to a «cognitive miracle».100 Thus, while
judging based on deontic yardsticks is most
practicable in everyday life, one should rely
on manual mode (implying cognitive reason-
ing) when it comes to dealing with unfamil-
iar101 moral problems; he terms this the No
Cognitive Miracles Principle.102 This tension,
100 These trial-and-error experiences can result from
genetic transmission, cultural transmission or
personal experience, as «these are the only
mechanisms known to endow human automatic
cognitive processes with the information they
need to function well», GREENE (Fn. 72), p. 714.
101 Unfamiliarity can be the result of recent cultural
development or moral disagreement. In the lat-
ter case, the «conflicting intuitions» causing the
disagreement should be dropped for the sake of
using manual mode, so GREENE (Fn. 72),
p. 716 f., 725. Why? Because our automatic
mode is not equipped to tackle unfamiliar moral
problems and make good intuitive judgement,
regardless of what is meant by good, cf. GREENE
JOSHUA D., Reply to Driver and Darwall, in: S.
M. Liao (ed.), Moral Brains: The Neuroscience
of Morality, 2016, p. 174. Good automatic
judgement without prior shaping experience is a
paradox or in GREENE’s words a cognitive
102 GREENE (Fn. 72), p. 715. Deontology is regard-
ed as unfit as it displays an emotional affinity
towards mere personal force and mere spatial
proximity. The insignificance of personal force
is highlighted by pointing out that it should not
make a difference morally whether the man in
the footbridge scenario was instrumentalised
through physical force (pushing him off) or a
switch (opening a trapdoor below), cf. GREENE
(Fn. 72), p. 713. In regards to spatial proximity,
GREENE deems it paradox that we regard it
deeply wrong to abandon a bleeding stranger on
the side of the road (even if it would result in us
having to replace our leather car seats), yet we
do not feel an obligation to save the lives of
countless people in impoverished parts of the
world through a donation of lesser or equivalent
value than the to-be-replaced seats, cf. GREENE
JOSHUA D., From Neural Isto Moral
Ought”: What are the Moral Implications of
Neuroscientific Moral Psychology?, in: Nature
Reviews, vol. 4, 2003, p. 848. For a further read
on the paradoxy of the situation, cf. SINGER
PETER, Famine, Affluence, and Morality, in:
Philosophy & Public Affairs, vol. 1, no. 3, 1972.
A similar example is provided by PETER UN-
GER, who compares refusal to donate to (prov-
en) charitable organisations with allowing a trol-
ley to kill a child rather than diverting it, destroy-
ing ones precious vintage Bugatti in the process,
cf. UNGER PETER, Living High and Letting Die:
Our Illusion of Innocence, 1996, p. 135 ff.
according to his Central Tension Principle,
stems from the inherent disparity in cogni-
tive design between efficiency and flexibil-
Instead of localizing a first principle and
deriving an answer from there, deontology is
akin to deriving the first principle from the
intuitively right answer.104 These claims are
backed by a large body of independent re-
103 Deontic judgement is regarded as a remnant of
our emotion-driven primal past, operating the
quick, automatic responses for the up-close sce-
narios our ancestors faced, hereby being nothing
more than the rationalisation of our intuitive
emotional behavior, the «cognitiveexpression
of our deepest moral emotions», GREENE
(Fn. 72), p. 699; GREENE et al. (Fn. 70), p. 398;
GREENE (Fn. 53), p. 62 f.
104 GREENE (Fn. 72), p. 725. This is illustrated in a
striking experiment: ordinary folk and profes-
sional philosophers are presented with cases
similar to footbridge (harm as means) and switch
(harm as side effect) in mixed order. When par-
ticipants (ordinary folk and philosophers alike)
were presented footbridge first, they were biased
towards answering switch to be impermissible as
well. When presented with switch first, the Doc-
trine of Double Effect was evoked 50 % more
frequently in the philosophers, providing a con-
gruent answer to footbridge (conforming to the
differentiation between means and side effect).
Further questioning revealed that the philoso-
phers adjusted the theory underlying their deci-
sion to be consistent with their choice in the
scenarios; thus, the philosophers that deemed
footbridge and switch impermissible (in that order)
committed a mistake somewhere, as they failed
to invoke the Doctrine of Double Effect. What
are the implications? The Doctrine of Double
Effect, GREENE claims, is not the underlying
principle where judgement is derived from, but
simply the codification of our intuitive judge-
ment. For a detailed account on the difficulty of
biting this metal bullet, cf. GREENE (Fn. 72),
p. 719 ff.
105 GREENE (Fn. 72), p. 700 ff. The weight lies not
on the individual studies, but their entirety, as
«each piece, taken in isolation, is open to alterna-
tive interpretations», GREENE (Fn. 72), p. 706.
For further studies he cites, cf. GREENE
(Fn. 53), p. 41 ff.; GREENE (Fn. 73), p. 204 ff.
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B. Linking Deontology and Retributiv-
GREENE knows that deontology and retribu-
tivism are two conceptually distinct moral
theories, yet he regards them virtually indis-
tinguishable within the domain of punish-
ment.106 Two arguments are supplied:
(1) Consequentialism is seen as the antago-
nist to both deontology in the field of moral-
ity and retributivism in the field of punish-
ment theories. Theories which are opposed
to the consequentialist account in the latter
field are founded on notions of retributivism
to some degree.107 Thus, strengthening the
consequentialist position leads non-
consequentialists and with that retributiv-
ists to shaky ground.
(2) Traditional proponents of deontology
tend to endorse punishment on retributivist
A wide array of evidence is provided for this
106 Cf. GREENE (Fn. 53), p. 78 en. 6.
107 Cf. GREENE (Fn. 53), p. 75.
108 Cf. GREENE (Fn. 53), p. 75. This notion can
best be observed in regards to IMMANUEL
109 Studies revealed ordinary people to be concep-
tually inclined with consequentialist principles of
punishment (as means of deterrence), yet sway
to the retributivist account of desert when con-
fronted with a tangible case, cf. CARLSMITH K.
We Punish? Deterrence and Just Deserts as
Motives for Punishment, in: Journal of Personal-
ity and Social Psychology, vol. 83, no. 2, 2002,
p. 286 f., 289, 292 f. Participants were found to
disregard consequentialist means even when di-
rectly confronted with them, punishing in pro-
portion to the emotional outrage they felt,
cf. GREENE (Fn. 53), p. 5055. Neuroimaging
studies of the ultimatum game confirmed these
results, with participants choosing to punish as
an ends itself in spite of no deterring impact
followed by increased activation of the anterior
insula and caudate nucleus (both brain regions
associated with emotions), cf. RILLING J. K. et
al., The Neural Correlates of Theory of Mind
within Interpersonal Interactions, in:
NeuroImage, vol. 22, no. 4, 2004, p. 1697,
1700 ff. A cross-cultural study on the moral
condemnation of harmless actions revealed
higher socio-economic status (=SES) and age
thus more developed cognitive capacities to lead
C. The Deontic Core of the Mental Giz-
mo Thesis
MAHLMANN termed the DPT the mental giz-
mo thesis and regarded it a fundamental attack
against human rights.110 Several arguments
were brought forth, most notably that it
suffers from an internal contradiction. The
utilitarian judgement, which is founded on
the principle of utility, is considered to be a
slow thinking process. The principle of utility
prescribes everyone’s happiness to count
equally, thus proposing two conditions: (1)
everyone to be regarded equal, and (2) equal
persons deserving equal treatment. The se-
cond notion is a deontic rather than con-
sequentialist principle, and it lies in the
heart of utilitarianism. Thus, according to
MAHLMANN, the DPT refutes itself by
claiming deontic judgement to be fast think-
ing, when it is this very same judgement that
lies in the heart of utilitarianism, which
GREENE regards as slow thinking.111
GREENE has explicitly stated that deontolog-
ical judgement can also result from slow
thinking (cognitive) processes, yet one does
not typically reach a characteristically deontologi-
cal conclusion this way, but rather from intu-
itive emotional responses (which manifests
to consequentialist responses (not condemning
harmless actions). The opposite (low SES and
young age) lead to characteristically deontologi-
cal decision making, cf. GREENE (Fn. 53),
p. 55 ff. Moral judgement could better be pre-
dicted by offensiveness than harmfulness, cf.
Culture, and Morality, or Is It Wrong to Eat
Your Dog?, in: Jounal of Personality and Social
Psychology, vol. 65, no. 4, 1993, p. 624 f. While
the majority of scenarios tested for do not pro-
vide a direct link between the condemnation of
harmless actions and deontology, the results are
identical in the broken promise case, which
GREENE labels as a case of «downtown deon-
tology», GREENE (Fn. 53), p. 57.
The studies are thus primarily a confirmation of
the cognitive nature of consequentialism and
should be apprehended cautiously for means of
linking emotional, punitive punishment to deon-
110 Cf. MAHLMANN (Fn. 9), p. 111.
111 Cf. MAHLMANN (Fn. 9), p. 116 f.; MAHLMANN
(Fn. 14), p. 274 f.
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GÜVER, From Is to Ought
in the significantly lower reaction times).112
Characteristically consequentialist judgement, on
the other hand, can never be reached by
automation; it is always the result of a slower
weighing process recruiting distinct areas of
the brain (dorsolateral prefrontal cortex).113
MAHLMANN deems this self-refuting, regard-
ing the very core of utilitarianism, namely
the principle of utility, to be derived from a
deontic notion.
The latter must not hold true. The innate,
natural expression of human psychology
namely that of justice satisfies the impar-
tiality requirement of morality without hav-
ing to fall back to deontic notions.114
However, is this »innate, natural expression
of human psychology« used to justify conse-
quentialism not based on the very same
emotional intuitions GREENE criticises de-
ontology for? Not necessarily. GREENE nev-
er claimed consequentialist judgement to be
void of emotion, quite the contrary:
GREENE sympathises with HUME’s allega-
tion that all moral judgement has an affec-
tive basis.115 GREENE differentiates between
the «alarm-lik, emotional urge of deonto-
logical judgement and the consequentialist
weighing process, which, while it too is sub-
ject to emotion, takes these into account as
relevant factors.116 This reminds of SIDG-
WICK’s solution, who differentiated between
perceptual, dogmatic, and philosophical in-
tuition, avoiding the predicament by assign-
ing the intuition underlying consequentialism
to the more sophisticated, latter kind.117
112 GREENE (Fn. 53), p. 65; for his account on the
reaction times, cf. GREENE et al. (Fn. 61),
p. 2107; GREENE et al. (Fn. 70), p. 390;
PAXTON, GREENE (Fn. 52), p. 521 f.
113 GREENE (Fn. 53), p. 64.
114 Cf. MILL JOHN STUART, Utilitarianism, 1863, in:
John Stuart Mill, Utilitarianism, Batoche Books
(ed.), 2001, p. 41 ff. The usual objection is dis-
missing MILLS account as fallacious, yet there is
good reason to regard it as deductively valid, cf.
MILLGRAM ELIJAH, Mills Proof of the Principle
of Utility, in: Ethics, vol. 110, no. 2, 2000.
115 Cf. GREENE et al. (Fn. 70), p. 397; GREENE
(Fn. 53), p. 64.
116 Cf. GREENE (Fn. 53), p. 64.
117 See SIDGWICK HENRY, The Methods of Ethics,
1874, J. Bennett (ed.), 2015, Chapter 8;
GREENE, Ethics, p. 724.
D. Deontology as Heuristics
GREENE makes it clear that the frequent
accusations of him being opposed to emo-
tion-based moral judgements are false, as he
attributes strengths and weaknesses to both
modes (automatic and manual).118
This seems to miss the crux of such accusa-
tions. One might imagine a computer with
two pre-installed programs: Program A is
able to create vivid, captivating stories based
on the input of a few key words. Program B
is able to solve any mathematical question
posed, akin to a calculator. It can now be
said that the computer has two different
programs with their respective strengths and
weaknesses, which is what GREENE claims
the dual-processing mind to have. If, how-
ever, Program B were also capable of con-
ceiving stories of the same calibre as Pro-
gram A, only taking longer to do so, it would
vastly discredit Program A.
It is clear that heuristic-like judgements have
a strong practical benefit for everyday life, as
we cannot ponder about every miniscule
decision. However, assigning efficiency as
the only advantage means settling for auto-
matic mode not due to its superiority in that
field, but real-life practicability: if one had
enough time at their disposal, the factually
correct answer to any question would result
from manual, cognitive thinking. The fre-
quent accusations turn out to be true, as
GREENE is discrediting deontology on a
conceptual basis by writing it off as heuris-
E. Interim Conclusion
It seems that both retributivism and deon-
tology share common roots in emotional soil
one that consequentialism is not based
on.119 Judging by the premise that these
118 Cf. GREENE (Fn. 72), p. 714. Automatic mode
relying on deontology and manual mode on
119 As elaborated in section VI.C, GREENE is in-
clined to follow HUME’s account that all moral
judgement stems from affect; it is the differenti-
ation between »alarm-like« emotions and an
emotional weighing process that is crucial in this
regard, and what is meant with emotional soil.
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roots are indeed capable of discrediting de-
ontology, bridging the gap to retributivism
requires little extra effort.120 Nevertheless, it
is a daring assumption to make.
VII. Indirect Approach to Reject-
ing Retributivism
A. Presupposed Picture of the Law
The criminal law regards persons as con-
scious and rational agents with the capacity
to enact control over their own actions (so
called practical reasoners).121 This view houses
on a folk psychological framework: action is
causally explained through certain mental
not brain states such as desires, beliefs,
intentions, and plans.122
120 PARDO/PATTERSON claim that this does not
undermine even a subset of retributivist views,
as correlating a theory to emotional areas of the
brain is a mere observation and does not prove
the theory to be incorrect (only showing how
things are, not how they ought to be). GREENE,
they claim, provides no independent criteria that
determines consequentialist reasoning to be more
correct than its deontic counterpart, see PARDO/
PATTERSON (Fn. 64), p. 189 f.
This view is a strawman. While GREENE did
suggest deontology to be on the wrong path to-
wards «moral truth», he never claimed conse-
quentialism to have discovered such either. In-
stead, he simply regards consequentialism as the
current «best available standard for public deci-
sion making», GREENE (Fn. 53), p. 77; also
GREENE (Fn. 101), p. 175. Deontological deci-
sion making is discredited by its link to moral in-
tuition, thus prone to morally irrelevant influ-
ences (e.g., mere spatial proximity).
121 Cf. WILSON (Fn. 79), p. 34; WALDBAUER JACOB
of Neuroscience and Law, in: Jurimetrics, vol.
41, no. 3, 2001, p. 359. As MORSE states: «Legal-
ly responsible agents are therefore persons who
have the general capacity to grasp and be guided
by good reason in particular legal contexts»,
MORSE STEPHEN J., Neuroscience and the Fu-
ture of Personhood and Responsibility, in: Uni-
versity of Pennsylvania Law School, Public Law
Research Paper no. 12/26, 2011, p. 117.
Primer on Criminal Law and Neuroscience: A
Contribution of the Law and Neuroscience Pro-
ject, 2013, p. xxxiii. This is reflected in the crite-
ria for criminal culpability: the actus reus, mens
rea, and affirmative defences are all dependent
on the mental states of the agent, see MORSE
When talking about actions and behavior,
we consider a certain someone a person
pulling the strings to be in charge. While it
is up for debate whether we should narrow
this personhood down to humans only,
there is mutual agreement on agency being a
necessary attribute ascribed to said person.123
In the criminal law’s retributivist sense, only
those agents that can be blamed for their
actions deserve punishment.124 Thus, the
presupposed picture is that of a free agent.
B. The Problem of Free Will
This notion of free will entails the ability to
do otherwise, to act as an uncaused causer.125
It stands in contrast to determinism: the idea
that the world in its current state «is com-
pletely determined by (i) the laws of physics,
and (ii) past states of the world».126 How do
the two relate?
STEPHEN J., Lost in Translation? An Essay on
Law and Neuroscience, in: M. Freeman (ed.),
Law and Neuroscience, vol. 13, 2011, p. 530 f.
While biological and sociological variables also
influence behavior, folk psychology considers
mental states to be the essential causal link, see
MORSE (Fn. 121), p. 117.
123 A distinct feature of this personhood being their
«status as a morally responsible agent» and a
special kind of control exclusive to them, see
ESHLEMAN ANDREW, Moral Responsibility, in:
E. N. Zalta (ed.), The Stanford Encyclopedia of
Philosophy, 2016. This thought can be taken
further, questioning whether the status of being
a person is exclusive to humans or if it includes
or ought to include certain (nonhuman) animals
as well. DARWIN made a famous conjuncture re-
garding this, saying that »any animal whatever,
endowed with well-marked social instincts,
would inevitably acquire a moral sense or con-
science, as soon as its intellectual powers had
become as well developed, or as nearly devel-
oped, as in man«, DARWIN CHARLES, The De-
scent of Man, and Selection in Relation to Sex,
1871, in: J. T. Bonner, R. M. May (eds.), The
Descent of Man, and Selection in Relation to
Sex, 1981, p. 71 f.
124 MORSE STEPHEN J., Psychopathy and Criminal
Responsibility, in: Neuroethics, vol. 1, no. 3,
2008, p. 208.
125 GREENE/COHEN (Fn. 85), p. 1777; MORSE
(Fn. 91), p. 16; MORSE (Fn. 81), p. 54.
126 GREENE/COHEN (Fn. 85), p. 1777. There are
different types of determinism, but for the sake
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There are three main approaches to this
conundrum, namely those of hard determin-
ism, libertarianism, and compatibilism.127
Hard determinism deems free will and de-
terminism to be incompatible, advocating
the latter to be true.128 Libertarianism, too, is
built on incompatibilist grounds, yet it re-
gards determinism to be false.129 Compatibil-
ism, as the most common view among pro-
fessional philosophers,130 presumes the pre-
vious two approaches to be conceptually
mistaken in regards to free will: rather than
being an uncaused causer, «agents must
simply have the capacity to determine their
actions by reasons and to act in light of
those reasons and are not compelled to act
in the ordinary meaning of compulsion».131
The criminal law operates under this com-
patibilist framework of «practical rationality»
even in absence of genuine free will.132 Cau-
sation is thus not a per se excusing condition
and has to be linked to compromised ration-
ality; believing otherwise would be what
MORSE terms the «fundamental psycholegal
C. The Curious Case of Mr. Puppet
GREENE/COHEN maintain the position that
the dualist position of the criminal law can-
not be upheld.134 What MORSE regards as the
of this discussion, the focus is placed on causal
127 GREENE/COHEN (Fn. 85), p. 1777; MORSE
(Fn. 81), p. 45.
128 GREENE/COHEN (Fn. 85), p. 1777.
129 GREENE/COHEN (Fn. 85), p. 1777.
130 Survey results showing that 56% are either com-
patibilist or tend to compatibilism, see BOUR-
losophers Believe?, in: Philosophical Studies,
vol. 170, no. 3, 2014, p. 476, 490.
131 MORSE (Fn. 81), p. 48.
132 PARDO, PATTERSON (Fn. 64), p. 199. Criminal
responsibility is thus not dependent on the no-
tion of free will and fully compatible with de-
terminism, cf. MORSE (Fn. 122), p. 533.
133 MORSE STEPHEN J., Neuroscience, Free Will,
and Criminal Responsibility, in: University of
Pennsylvania Law School, Public Law Research
Paper no. 15/35, 2015, p. 262.
134 The kind of mind-body dualism concerned with
here is that of the mind as a non-physical mental
«fundamental psycholegal error», they un-
derstand as the gap between folk intuition
and the compatibilist view of the law.135 The
example of Mr. Puppet aims to highlight this
Mr. Puppet is a hypothetical person that has been
genetically scripted by a scientist who sought after
designing a human to commit a specific crime. This
scientist controlled every variable of Mr. Puppet’s
life, every single event from his infancy to his teen-
age years with 95 % accuracy. Just as the scientist
predicted, Mr. Puppet committed said crime. Can
Mr. Puppet be deemed guilty?136
1. Approaching from Neuroscience
The Mr. Puppet argument presupposes de-
terminism and targets the law’s compatibilist
stance. For proof of said determinism, one
might point towards the studies of BENJA-
MIN LIBET, which revealed subject’s deci-
sions to be made 350–400 milliseconds be-
fore they were consciously aware of their
intention to act.137 LIBET adds that there was
a timeframe of 100 milliseconds between
conscious intention and performance, during
which the subject could assert a «veto» over
his decision.138
Free will seems largely debunked. After all,
how much freedom is really left when hu-
man decisions once deemed their own are
revealed to be that of their subconscious?
Our consciousness would turn out to be a
mere byproduct of subconscious brain activ-
entity that has an impact on the physical realm,
see GREENE/COHEN (Fn. 85), p. 1784.
135 GREENE/COHEN (Fn. 85), 1777. They argue
that the law ought to reflect the «moral intui-
tions and commitments of society»,
GREENE/COHEN (Fn. 85), p. 1778.
136 GREENE/COHEN (Fn. 85), p. 1780.
137 LIBET BENJAMIN, Unconscious Cerebral Initia-
tive and the Role of Conscious Will in Voluntary
Action, in: The Behavioral and Brain Sciences,
vol. 8, no. 4, 1985, p. 529.
138 LIBET (Fn. 137), p. 529, 537 f. This veto ought
not be understood as a kind of free will, but ra-
ther as a free-won’t, see HAGGARD PATRICK, Neu-
roethics of Free Will, in: J. Illes, B. J. Sahakian
(eds.), The Oxford Handbook of Neuroethics,
2011, p. 221. A critical analysis on the scientific
validity and conclusions can be found in MORSE
(Fn. 122), p. 551.
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GÜVER, From Is to Ought
ity on which the agent has no influence he
did not make the decision, it was his brain.139
This notion has to be rejected. A readiness
potential in the brain is far from a deci-
sion,140 and subconscious brain activity pre-
ceding conscious one is not proof of deter-
minism, but rather how one would expect
the brain to operate.141 There are also several
methodological concerns. A 400 millisecond
delay between conscious and subconscious
processes for pointing a finger at a clock
under strict laboratory settings does not
translate into everyday action capacity in-
volving decisions magnitudes more complex.
There are scenarios in which humans have
to consciously choose to act in a span short-
er than 400 milliseconds the swing/no
swing decision of a professional baseball
player being an example.142
This does not rule out that one day, neuro-
science might be able grant full insight into
the «mind’s clockwork» and reveal our
thoughts to be nothing more than red neu-
rons firing against blue neurons.143 Current
neuroscience, however, is still far from that.
2. Approaching from Physics
Determinism on a conceptual level
seems to be built on false notions of physics.
The idea of a fully causal universe is based
on Newtonian physics, yet ever since the
discovery of quantum mechanics, we know
139 By the time the agent wanted to do something,
that decision had «already been made by lower-
level brain mechanisms», DENNO DEBORAH W.,
Crime and Consciousness: Science and Involun-
tary Acts, in: Minnesota Law Review, vol. 87,
no. 2, 2003, p. 327.
140 Cf. MORSE (Fn. 122), p. 550.
141 Cf. FREEMAN MICHAEL, Introduction: Law and
the Brain, in: M. Freeman (ed.), Law and Neuro-
science, vol. 13, 2011, p. 6.
142 In the scenario of a 90 miles per hour pitch
from less than 60 feet away, the batter has less
than half a second to make a conscious decision,
cf. PARDO, PATTERSON (Fn. 64), p. 129, fn. 31.
143 GREENE/COHEN state the example of a futuris-
tic scanner that might be able to track every neu-
ron and neuronal connection in the brain, ana-
lyse the data and visualise the human decision-
making process (red neurons vs blue neurons),
cf. GREENE/COHEN (Fn. 85), p. 1781.
this account to be incomplete. Assuming
quantum mechanics to cause truly random
events, the world in its current state would
be the result of (1) the laws of physics, (2)
the past state of the world, and (3) random
quantum mechanical events.144 This ran-
domness seems to be incompatible with
There are two ways to tackle this argument.
First, the premise of quantum mechanics as
a truly random force of nature might be
mistaken. The accounted randomness of
quantum-mechanical events is based on a
form of the Copenhagen interpretation,145
and there is an ongoing discourse in the field
as to whether that holds true.146 For the sake
of the argument, we can assume quantum
mechanics to be truly random. What fol-
lows? Causal determinism would lose its
footing, as future events could not be de-
duced from past world states anymore. This,
however, is neither proof of the reality of
free will, nor the retributivist precondition of
desert. Human action – in the sense of an
uncaused causer – is no more free in a fully
random universe than a fully determined
D. The Curious Case of Mr. Puppet Con-
In regards to GREENE/COHEN’s argument,
we ought to presume determinism to hold at
144 Cf. GREENE/COHEN (Fn. 85), p. 1780.
145 This interpretation states that there is no defini-
tive position of a particle prior to its observa-
tion; once observed, it leads to a wave function
collapse, and only then does it have a concrete
state beyond a mere wave function probability,
cf. BOHM DAVID, A Suggested Interpretation of
the Quantum Theory in Terms of «hidden» Var-
iables. I, in: Physical Review, vol. 85, no. 2,
1952, p. 167 f.
146 There are alternate interpretations of quantum
mechanics which do not hold footing in true
randomness, advocating a deterministic account
instead, for example the De Broglie-Bohm The-
orem, see BOHM (Fn. 145), p. 169 ff. Another
possible solution and part of a more recent
debate would be the many-worlds interpreta-
tion, which assumes a corresponding universe
for each possible state of the wave function to
exist, see EVERETT HUGH, The Theory of the
Universal Wave Function, 1956, p. 63 ff.
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GÜVER, From Is to Ought
least partially true, as the following question
would not arise if definitive proof of free
will were present: Can Mr. Puppet be
deemed guilty? After all, the law regards him
as rational as any other member of society,
his actions a reflection of his desires and
beliefs.147 Yet the intuitive reaction is no, Mr.
Puppet ought not be blamed, at least not in
a retributivist sense.148 He cannot be regard-
ed guilty, as he was not at fault; his actions
were carried out by him, yet not his own.
Blaming him for what he did seems wholly
out of place he was simply a victim of
«neuronal circumstances».149 It is not intend-
ed for Mr. Puppet to be exempt from all
punishment and free to roam the streets, as
consequentialist principles of deterrence and
incapacitation would still apply.150 Only the
retributivist component of genuine moral
blame would be alleviated.
Criticising the law for diverging from the
folk’s incompatibilist intuition seems hypo-
critical coming from GREENE, as he now
bases an argument off the same moral intui-
tions he deemed unreliable and biased in
regards to deontology.151 Even if humans
were intuitively incompatibilist, one would
147 GREENE/COHEN (Fn. 85), p. 1780.
148 Among the general population, an incompatibil-
ist stance was taken when determinism was pre-
sumed true in an alternative universe; when the
same question was posed in regards to our uni-
verse, common folk shifted towards assigning
moral responsibility and blameworthiness,
ing Moral Responsibility Down to Earth, in: The
Journal of Philosophy, vol. 105, no. 7, 2008,
p. 376, 381. This hints towards the difficulty of
letting go of certain retributivist notions which
seem to be driven by a strong affective value.
149 GREENE/COHEN (Fn. 85), p. 1781. «The Aston-
ishing Hypothesis is that You, your joys and
your sorrows, your memories and your ambi-
tions, your sense of personal identity and free
will, are in fact no more than the behavior of the
vast assembly of nerve cells and their associated
molecules. [...] Youre nothing but a pack of
neurons», CRICK FRANCIS, The Astonishing
Hypothesis: The Scientific Search for the Soul,
1995, p. 3.
150 GREENE/COHEN (Fn. 85), p. 1783.
151 They were framed as heuristics and deemed
unreliable in «unfamiliar» situations (No Cogni-
tive Miracles Principle), see section VI.A. The
free will debate is as «unfamiliar» as it gets.
commit the original naturalistic fallacy to
assume this statement to be of any direct
normative value.152 MORSE deems it a form
of «neuroarrogance» to expect fundamental
notions of human behavior and the law to
change based on a science that has not been
able to provide a solution to the mind-body
This leads to an important question: Why
does the burden of proof lie on the incom-
patibilist theories? The law’s compatibilist
account has provided no genuine proof ei-
ther the construction of «practical rea-
son»154 seems to be a placeholder until the
mind-body problem is resolved. Would it
not make more sense to stray from retribu-
tivist notions until humans have been proven
to be free agents? By asserting blame in state
of such uncertainty, the maxim of in dubio pro
reo is violated – a glaring error when consid-
ering that the criminal law’s act-guiding pur-
pose could be fulfilled on wholly consequen-
tialist grounds.
VIII. Conclusive Remarks
It is not without reason that the discourse
on moral cognition is ongoing in such a
fierce manner. After all, the stakes could not
be any higher.155 When GREENE first pre-
152 After all, the determinism debate has been ongo-
ing in philosophy since millennia; it will not be
decided by a rather simple observation,
cf. MORSE (Fn. 91), p. 16.
153 Cf. MORSE (Fn. 81), p. 67; MORSE (Fn. 122),
p. 546 f. As WITTGENSTEIN famously asked:
«Wenn ich meinen Arm hebe, hebt sich mein
Arm. Und das Problem entsteht: was ist das, was
übrigbleibt, wenn ich von der Tatsache, daß ich
meinen Arm hebe, die abziehe, daß mein Arm
sich hebt?», WITTGENSTEIN LUDWIG, Philoso-
phische Untersuchungen, 1945, para. 621.
154 This conception of practical rationality is depend-
ent on the existence of mental states; it suc-
cumbs to the radical determinist notion of elim-
inative materialism, where all agency ceases to
exist, cf. MORSE (Fn. 81), p. 67. While neurosci-
ence did not provide definitive proof towards
this materialist account, doubts on dualist theo-
ries were raised.
155 «[...] if commonsense intentional psychology
really were to collapse, that would be, beyond
comparison, the greatest intellectual catastrophe
in the history of our species; if were that wrong
cognitio 2019/2
GÜVER, From Is to Ought
sented his DPT seventeen years ago, he was
subject to a plethora of critique. To this day,
his essays are being cited upwards of two-
hundred times a year and remain integral to
the discourse of moral cognition.156 The
potential impact is immense, and if true,
would extend to the deepest corners of our
lives, the criminal law being a rather proxi-
mate one.
However, one should not overplay the find-
ings. Not only is the DPT based on neuro-
scientific data which is highly susceptible to
methodological errors,157 but it also stands in
competition to several other theories some
more sophisticated than itself. The dual-
process theory resembles a further argument
albeit a strong one in the ongoing debate
on human thought and morality; a debate
that has remained inconclusive since millen-
nia. The battle of HUME and KANT, once
exclusive to the domain of the mind, has
now been taken to the laboratories.
The criminal law is founded on the same
notions that are currently at stake. As sci-
ence advances, these might change, but for
now, lawmakers ought not worry.
about the mind, then thats the wrongest weve
ever been about anything. [...] Well be in deep,
deep trouble if we have to give it up.» FODOR
JERRY A., Psychosemantics: The Problem of
Meaning in the Philosophy of Mind, 1987, p. xii.
156 SCHLEIM (Fn. 18), p. 195.
157 «Voodoo correlations», statistical smoothing,
circular analysis, and reverse interference, to
name some of the current issues with neuro da-
ta, cf. MAHLMANN (Fn. 9), p. 118 f.
IX. Appendix
Figure 1, the cognitive reasoning process behind moral judgement; retrieved from HAIDT (Fn. 3),
p. 815.
Figure 2, the links of the social intuitionist model; retrieved from HAIDT JONATHAN, Figures for
«The Righteous Mind: Why Good People are Divided by Politics and Religion», 2012, Chapter 2
Figure 2.4 (accessed July 27th, 2019).
cognitio 2019/2
GÜVER, From Is to Ought
Figure 3, the act-tree approach in regards to footbridge (left) and bystander (right); retrieved from
MIKHAIL (Fn. 50), p. 119.
Figure 4, an overview of the Dual-Process Theory; retrieved from PAXTON/GREENE (Fn. 52),
p. 514.
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ResearchGate has not been able to resolve any references for this publication.