For quite some time now, the law, especially criminal law, has been concerned not just with whether a person did something, but whether he was capable of understanding what he did. Neuroscience, the argument goes, has opened the mind up to the point that we can see into it, and determine once and for all, what someone was thinking, and whether he was truly responsible for his actions. Or, has it even come close to doing that? And even if it is someday capable of doing something close to that � being a window into a person�s mind � will it even change how the law works at all?

The two sides to this argument are: that neuroscience, either today or someday, enables or will enable us to determine once and for all whether a person is responsible for his actions, and change radically the way that criminal responsibility is perceived. And the other side of the coin is that neuroscience changes nothing, and that �the law has been dealing with issues of criminal responsibility for a long time,� (Greene and Cohen: For the law, neuroscience changes nothing and everything: 1778) (�Greene�) so long that science will not change the way that the law looks at criminal responsibility.

I. Neuroscience Changes Nothing
�The argument goes, new science can help us figure out who was or was not rational at the scene of the crime, much as it has in the past, but new science will not justify any fundamental changes in the law�s approach to responsibility.� (Greene: 1778) In other words, traditional yardsticks for measuring responsibility (e.g. M�Naughten�s traditional �right and wrong� test) will not change no matter how far science advances. Rather, science will help assay defendants within conventional criteria.

The corollary to this argument, according to Greene and Cohen�s essay, is that law will remain retributivist in practice � punishing those who commit harm. More directly put, so long as the law remains grounded in retributivism, it will be apparent that science has not made any significant changes to the way the law works.

There is no question that the law today is retributivist in the way it deals with criminal defendants. For the most part, those who cause great harm (murderers, rapists), are punished more severely than for example, petty thieves. And even in the fields of white collar crime, the law has caught up to punish those who take great sums of money from the general public, as severely as your run of the mill liquor store robber.

When the law is based on retributivism, as it is now, science is important only if it firmly establishes that an individual is not responsible for his actions. So long as this paradigm remains, neuroscience, the argument goes, will change nothing. An example of a retributivist way of looking at the law is the Code of Hammurabi, which outlined specific offenses and penalties. For example, the Code listed twelve anti violence statutes, with detailed descriptions of what sort of violence was forbidden and what the penalty might be. (Hammurabi Code: 195 � 207) Another example of laws that would not change with science would be Exodus� Ten Commandments, which included absolutes such as �You shall not steal,� (Exodus 20:15), and Exodus 21: 12 � 26 which included penalties for violence. These sorts of rules did not bother with the state of mind or intent of the actor, and no amount of insight into the human mind would alter or sway any assignment of culpability.

Even analyses of the law such as from Martin Luther King, Jr�s, Letter from Birmingham Jail do not leave much room for science to alter our perception of the law. In his Letter, King makes a moral argument that �A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law.� King felt that laws were justified in some contexts, but not in others. This sort of rationalization, while far more sophisticated than the absolutism of Hammurabi�s Code or Exodus, leaves little room for responsibility based on defect. This sort of analysis of law turns on whether a law is right or wrong morally, and not on the actor�s capacity to understand the law.

Chan�s The Natural Way of Lao Tzu introduces the basic Taoist teachings of dwelling �quietly alone with the spiritual and the intelligent� in strong opposition to �oppressive government,� which again do not turn on legal responsibility. Such a way of looking at life and the law would not be altered by learning of the inner workings of the human mind. Taoism as further explicated in Benjamin Hoff�s The Tao of Pooh,�means �things in their original simplicity contain their own natural power.� This organic view of things is immutable in the face of even sophisticated insights into the inner workings of the human mind.

For Lao Tzu, Martin Luther King, the God of the Bible and Hammurabi, men are responsible for their own actions, and no amount of science can alter that. A man who kills without justification will be killed according to the Bible, as will someone who commits violence in the time of Hammurabi. And Taoism presupposes that no one should do anything that will hamper the development of himself and others. It does not even consider the anarchist thoughts of a madman.

Oliver Goodenough�s Responsibility and punishment: whose mind? A response laments the fact that the movement over time, even given the advances in science, has been to accord increased responsibility to actors who previously might have been held not accountable for their actions. In other words, that as science has marched on with greater techniques for measuring cognitive capacities, the law has actually grown more �parsimonious� (Goodenough: 1805) to allowing any defendant to offer much of any �reduced capacity� or �reduced responsibility� defense to crimes. For example, Goodenough relates the story of how he once became enraged and tried to crash down his tennis racquet with full force onto his friend�s skull. When that happened, Goodenough�s friend fortunately deflected the blow, and the two of them continued on their way to remain lifelong friends. At that moment, Goodenough clearly lost a capacity for rational thinking, although he certainly maintained an understanding of right and wrong. Something definitely went completely haywire with his thinking and yet � when he presented the story of this indiscretion to his academic peers over the years few, if any, felt that he had no responsibility for his actions. It would seem then that a significant scientific knowledge and background, as would be presumed for Goodenough�s peers, made no difference in the way they perceived culpability. And such, it seems tragically, is the direction which Goodenough proposes we are moving in now: one in which excuses for culpability are being increasingly viewed as just that, �excuses,� and in most cases, unacceptable ones.

Stephen J. Morse�s New Neuroscience, Old Problems similarly argues that no matter how far science progresses, it will still function within the traditional framework of how the law views culpability. In other words that science presents no challenge to the law: �the new neuroscience casts little doubt on responsibility generally.� (Morse: 171) In other words, since �virtually all legal responsibility and competence criteria depend on assessment of the agent�s rational capacities in the context in question,� (Morse: 177) science will simply offer, at best, improved methods for ascertaining this capacity. It will not, according to Morse, change the over all paradigm. The conditions for legal reform will not happen. That is to say, to use an analogy, that Swiss watches will always control the market, in that the Swiss were the first to create watches and remain the best at making them. By the same token, Morse argues that while �criminal law has long recognized that some criminals are incapable of basic rationality and has provided a defense to excuse such offenders, advances in mental health science can teach us much about why some people lack rationality, and can help identify and treat those people, but it cannot tell society which rationality defects are sufficient to excuse the wrongdoer.� For Morse, science will not cause a paradigm shift for the law.

These arguments, in essence, are that science can show us when someone is responsible within the framework of what the law has already decided are the signposts for determining responsibility, but science will not and never will completely change our notions of what it means to be responsible for one�s actions.

II. Neuroscience changes everything.
In order for science to change everything, according to Greene and Cohen, law must cease to apportion responsibility according to its current narrow signposts. Rather, the law must begin to comprehend that ultimately everyone is directed and driven by the overall forces of one�s life and environment, and that if such forces exceed a certain measure, then one should not be held responsible for one�s actions but rather treated so as to prevent future transgressions. This is the basic concept behind consequentialism, the flip side to retributivism, which Greene and Cohen offer as the preferred direction for criminal punishment, and a necessary corollary of advances in neuroscience. Consequentialism seeks not to punish criminals for the harm they have caused, but rather to create long-run good from whatever punishment might be imposed. Consequentialists look at a variety of factors when determining what punishment, if any, should be imposed: removing the criminal from society so as to reduce crime, deterring others from committing crimes through threats and example, and rehabilitation and reform of the criminal.

Goode and Cohen argue that neuroscience will someday advance so far, that it will provide �extremely high resolution scanners that can simultaneously track the neural activity and connectivity of every neuron in a human brain, along with computers and software that can analyze and organize these data.� (Goode: 199) Goode and Cohen opine that when this point comes, a traditional view of human will and what it means to be responsible for an action will no longer fit in the customary notions of right and wrong, or tests for irresistible impulses. They argue that this will lead to understanding that �free will, as we ordinarily understand it, is an illusion.� (Goode: 201)

So, what does this mean in a real world context? Extrapolating this theory that free will does not exist, Goode and Cohen thereby maintain that someday we will no longer hold a shoplifter responsible for his actions, if we can indeed establish conclusively that his brain functions differently from a normal brain � even if he does not fall within traditional tests for insanity or irresistible impulses. Or, perhaps they mean that science will progress so far that we will understand that to some extent, none of us is completely responsible for our actions.

However, it seems to me that Goode and Cohen are not arguing that criminals, once we obtain this hyper ability to peer into the workings of the human mind, should be let off. Rather, their argument is that this will lead to a new paradigm for punishment, based on consequentialism � where, since everyone to one extent or another is the product of uncontrolled impulses, all that matters is not the measure of harm caused by the criminal, but the future good created by any action taken against him.

One of the components of consequentialism is deterrence. Deterrence is a common consideration in laws. �One of the principal objects underlying any criminal legislation is that of deterring men from crime.� (�Judge Foster� in Lon Fuller�s Speluncean Explorers) As well, in Christiana, the modern day Utopian community in Denmark, part of the reason people obey the laws is because if the laws cease to work for them, Christiana will cease to exist: Denmark will step in and absorb the community. This is deterrence.

In Legal Realism, Karl Llewellyn opined that �Law is indeterminate and judges, accordingly, must and do often draw on extralegal considerations to resolve the disputes before them. The best answer to the question �What is (the) law?� is �Whatever judges or other relevant officials do.�� This sort of thinking is in harmony with the concept that neuroscience shapes and may someday change the law. Judges are always concerned, more so than juries, certainly more than prosecutors, with understanding defendants. A judge is hesitant to impose a punishment if he does not make sense of the crime, and to some extent, the defendant. In this context, science may someday be able to give him the insight he needs into the person standing before for judgment. Science may well shape the punishment imposed, as judges seek to understand defendants and their actions.

As societies move from retributivism, and towards consequentialism, as for example Christiana has, the room for science to provide guidance into whether punishments are proper grows immeasurably. For example, the Speluncean judge Kleen outlines three steps that lead to judiciary reform: �The first of these is to divine some single �purpose� which the statute serves. This is done although not one statute in a hundred has any such single purpose, and although the objectives of nearly every statute are differently interpreted by the different classes of its sponsors. The second step is to discover that a mythical being called �the legislator,� in the pursuit of this imagined �purpose,� overlooked something or left some gap or imperfection in his work. Then comes the final and most refreshing part of the task, which is, of course, to fill in the blank thus created.� While offered in a sort of light hearted facetious manner, in essence this process is exactly what would need to happen as science advances to the point where the purpose and objectives of statutes became less meaningful. In the wake of such neurological advances, traditional interpretations of human responsibility for actions might become irrelevant.

Ronald Dworkin�s Law�s Empire seems also to present a framework that could integrate with neuroscience as changing the law. Dworkin presents three stages for legal theory: beginning with the �preinterpretive stage� (where rules of conduct are identified), to the �interpretive stage� (where the justification for these rules is settled) to he �postinterpretive stage� (where rules are reevaluated based on what vindicated them in the first place). In Dworkin�s legal theory, rules are not merely identified but also interpreted and constantly evaluated. This basic infrastructure is in harmony with neuroscience as an instrument of change. As science is used to reevaluate rules of law to determine whether they were justified in the first place, rules, the very structure of law, might change. As such, Dworkin�s entire idea � that laws must be evaluated not just to determine if they are justifiable but also to see if there are adequate grounds for making individuals obey them � fits nicely with the concept of neuroscience as being an impetus for change in the law.

To a lesser extent, H. L. A. Hart�s The Concept of Law also leaves open the possibility for reform due to neuroscientific advances. Hart criticizes most formalistic approaches to evaluating the law. Hart argues that any formalistic methodologies are too rigid to allow for needed changes in, or even adaptability to, exercises of the law. While Hart at the same time argues that there need be no connection between law and morality, and that concept is not necessarily in accord with consequentialism, his over all malleable approach to the law leaves open the possibility of change � and change is what neuroscience can bring to the law, according to Greene and Cohen.

A discussion of neuroscience and the law would be incomplete without considering what science might bring to our concept of free will, that is � what free will is, and whether any of us have it. The argument is that neuroscience will alter so radically our notion of free will, that it will in effect change our view of law and responsibility. One way of looking at it, is that Neuroscience might ultimately show that free will is something we all have (even the insane), and thereby do away with any defenses that include a �lack of free will.� (Irresistible impulse, etc.) If this happens, certainly neuroscience will have altered the law, although not in the positive way that Goode and Cohen envision. Gazzaniga and Steven�s Free Will in the Twenty-first Century present a detailed explanation of the brain and neuro activity, as currently known, that appears to lead to an understanding that free will is an undeniable fact.

At the same time, neuroscience can present organic explanations for what might be called a �lack of free will,� such as the apparent brain abnormalities in criminals who exhibit antisocial personality disorder. (Gazzaniga: 59 � 61) Brain scans of criminals who exhibit a specific characteristic of APD � impulsive aggression � do seem to exhibit certain definite deficiencies in certain neurotransmitters. Those with specific types of brain lesions exhibit even more defined forms of abnormal behavior. Perhaps as science advances, and is more readily accepted in these departments (just as, for example, DNA evidence has now become second nature evidence), so will explanations for deviations from normal behavior become more satisfactory excuses.

In this context then, science becomes the harbinger of change. Neuroscience �changes everything� because it presents such a radically clear understanding of the workings of the human mind, that it will someday become as second nature as any other evidence, to allow it to explain and even justify actions.

III. Conclusion
Clearly, science has impacted the law. And yet, as pointed out in Goodenough, the law has not only not kept pace with science, but seems to be moving backwards in reaction to it. The fact that we are allowing less, not more, science based justifications for criminal behavior might well be the strongest argument that science is making no difference at all in the law.

At the same time, however, the level of scientific development � insight into the workings of the mind � that Greene and Cohen envision, would have to make some impact on the way the law views responsibility. Today, courts are beginning to accept �brain lesions� as scientific corroboration for organic brain syndromes that remove culpability for certain types of actions. The fact that we accept such sophisticated defenses today, as well as the inevitability of scientific advances (again, DNA was not understood enough in the days of OJ Simpson�s murder trial to even secure a conviction � today it is given almost other-worldly credence), are the strongest arguments for believing that science will marshal great changes in the law.

Will science ever be able to see into how we think? is the ultimate question. Given advances today, there is no reason to believe that it will not be able to at least someday simulate our thought processes and thereby determine, at least indirectly, why we do what we do. If science can cast a light into our thoughts, there is no reason to believe that it will not change the law � which is always trying to peer into a defendant�s intent.

In the end � the model may have to change � inevitably. Just as Japanese watches eventually took over a market that could never have been imagined to belong to any other than the Swiss, so science might shift the paradigm of the law into new, uncharted territories.