Washington University Jurisprudence Review
Mental causation is a foundational assumption of modern criminal
justice. The law takes it for granted that wrongdoers “deserve”
punishment because their acts are caused by intentions, reasons and other
mental states. A growing body of neuroscience evidence shows, however,
that human behavior is produced by observable physiological activity in
the brain and central nervous system—all in accordance with ordinary
physical laws. Beyond these ordinary physiological interactions and
processes, no hypothesis of mental causation is required to causally
Despite the evidence, neuroskeptics insist that intentions, reasons and
other mental states can play a causal role in producing human behavior.
The evidentiary case for mental causation turns out, however, to be
premised on a well-known logical fallacy, post hoc ergo propter hoc.
Meanwhile, based on the best explanation of all the evidence and data,
mental causation almost certainly cannot and does not occur.
If mental causation is the basis on which offenders are deemed to
deserve punishment, current punishment practices may need to be revised
in the interest of justice. While society will probably always need to use
coercive measures against persons who pose intolerable dangers and
risks, the nature and quality of those measures may be very different if
they are treated as a regrettable necessities rather than as deserved.
John A. Humbach,
Neuroscience, Justice, and the "Mental Causation" Fallacy,
11 Wash. U. Jur. Rev. 191
Available at: https://openscholarship.wustl.edu/law_jurisprudence/vol11/iss2/5