Neuroscience, “Folk Psychology”, and the Future of Criminal Responsibility
Warren Brookbanks* |
This article examines claims that cognitive neuroscience challenges the theoretical and practical efficacy of the notions of free will and criminal responsibility and threatens to dominate the entire legal system. The notion of “folk psychology” — popular explanations of behaviour of which criminal responsibility and its analogues may be a manifestation — is considered in light of the challenges posed by eliminative materialism and deterministic neuroscience. The question that is posed is whether the concept of criminal responsibility will be able to withstand the imperious advances of modern science inherent in cognitive neuroscience and other reductionist accounts of human behaviour. The article concludes that, while neuroscience technology may impact the way in which certain evidence is led in criminal trials, it is unlikely (at least for the foreseeable future) that neuroscience will undermine the libertarian concept of free will on which the retributivist system of criminal law depends.
*Professor of Law, The University of Auckland. This article is based on the author’s Inaugural Professorial Lecture, The University of Auckland, 19 September 2007.
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Indigenous Peoples and the Maori:The Right to Self-Determinationin International Law — From Woe to Go
Nin Tomas* |
This article explores the development of protection for the rights of indigenous peoples at international law, via application of the principle of self-determination. It begins by looking at external perceptions (or lack thereof) of indigenous peoples in the early history of international law, through to recognition of indigenous peoples’ rights in 2007; and then moves the discussion into Aotearoa New Zealand, focusing on Maori as the tangata whenua of Aotearoa New Zealand.
*Faculty of Law, The University of Auckland. I would like to thank my research assistants, Rebecca Kruse (Politics) and Katherine Mulcahy (Law), for their assistance in gathering material for this article. I also thank Tim McBride, whose request that Deidre Bourke and I review and amend the chapter on self-determination for the forthcoming McBride, New Zealand Civil Rights Handbook (4th ed, 2009) led to the writing of this article.
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The Solicitor’s Duty
Duncan Webb* |
This article explores the nature and source of the obligations placed on a solicitor who acts for different parties to the same transaction and considers that the usual approach of identifying the opposing, or potentially opposing, interests of the two clients is erroneous. Rather, the article argues that the core issue is whether the solicitor owes duties that are inconsistent and maintains that the nature of the relationship between the parties — their relative status — is the foundation of the fiduciary obligation. In this, the article relegates contractual obligations to a secondary place. It is suggested that recognizing the relationship-based foundation of the fiduciary obligation will assist in determining and understanding the limits of curtailing fiduciary obligations by contract or other consent-based mechanisms.
*Professor of Law, University of Canterbury. |
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2008 Issues 
