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Law and the BrainReview - Law and the Brain
by Semir Zeki and Oliver Goodenough (Editors)
Oxford University Press, 2006
Review by Raffaele Rodogno, Ph.D.
Jul 17th 2007 (Volume 11, Issue 29)

This is a rather introductory, clear, and readable collection of papers for those interested in issues at the intersection between brain science and the law as well as those interested in ethics broadly understood.  The 14 essays are structured so as to provide a loose progression for the reader.

The first two essays, 'The neuroeconomic path of the law' by Judge Morris Hoffman (Colorado) and 'How neuroscience might advance the law' by Erin O'Hara (Law, Vanderbilt), put the combination of law and the brain into its context in jurisprudence and the legal academy, both intellectually and politically.  These two essays are really informative for those who are not acquainted with the US legal practice context.

The next two essays, 'Law and the sources of morality' by Robert Hinde (Zoology, Cambridge) and 'Law, evolution, and the brain' by Owen Jones (Law and Biology, Vanderbilt), examine the underlying principles of evolutionary biology that provide a foundation for the proximate brain mechanisms involved in morality and law.  The former essay, in my opinion, fails to take into account of what philosophers interested in the nature of morality call reason as a source of morality.  Recently, others contributors to this volume among others (e.g. Greene) have begun to find neuroscientific evidence in favor of the idea that at least some types of moral judgments activate parts of the brain typically associated with higher cognitive capacities rather than emotions.  These findings would not contradict Hinde's thesis that "moral codes and values are derived from human nature" but would still go against the spirit in which the author cashes out this claim.  The latter of these two essays is a clear, introductory, and useful (though at times repetitive, e.g. pp.61-62) account of the ways in which evolutionary biology, and in particular ultimate behavioral causes, can explain proximate causes for behavior.  Or again, how "different behaviors of different individuals can flow from species-typical brains that sport highly contingent evolved algorithms..."  (60) The theory is then convincingly applied to a number of areas in which evolutionary biology could make a contribution to the law such as for example, cost-benefit analysis or in the process of assessing the effectiveness  of legal strategies (the author provides an explanation as to why it may be predicted that it would prove more difficult for criminal law, family law, torts and property law to change behaviors pertaining to "mating, fairness, homicide, childrearing, status-seeking, property and territory, resource accumulation, sexuality..." (73)).

In the final introductory article, Oliver Goodenough and Kristin Prehn (Psychology, Humboldt) describe 'A neuroscientific approach to normative judgments in law and justice', reviewing the state of research  into normative judgment, making the link between law and cognitive neuroscience, and providing, along the way, an introduction to the methods of cognitive neuroscience for the lay reader.  Philosophers and/or those not acquainted with the empirical sciences at hand will find the subsection on 'Methodological considerations' (88-90) particularly rewarding.  They will finally understand, for example, that fMRI images indicate as active only those parts of the brains that show a statistically significant level of increase or decrease in the measurable phenomenon (blood flow) as compared with a control state.  This piece of information will enable one to ask a number of methodologically crucial questions concerning the definition and nature of the control state. 

The next pair of articles, 'The brain and the law' by Terrence Chorvath (Law, George Mason) and Kevin McCabe (Economics and Law, George Mason) and 'Neuroeconomics' by Paul Zack (Economics, Claremont Graduate University) provide complementary reviews of exciting developments in economics growing out of the new neuroscience .  Both also suggest potential applications of these developments to legal concerns, particularly in the realms of economic exchange and institution building.  While the former essay seems to do be doing so at a more general level ("Its focus is the development and the effect of law on the main body of society" envisaged from a neuroeconomic point of view and with particular emphasis on the development of trust) the latter essay mentions (in passing) specific legal examples such as how neuroeconomics can help explaining what rewards and what punishments are likely to work and why (for example, most punishment have little impact on deterring larceny (149)). Zack's essay also includes an introduction to brain anatomy for non-specialists.

Moving to more specific legal problems, the issue next presents a pair of articles on courtroom concerns: 'A cognitive neuroscience framework for understanding causal reasoning and the law' by Jonathan Fugelsang (Psychological and Brain Sciences, Dartmouth) and Kevin Dunbar (Psychological and Brain Sciences and Education, Dartmouth), and 'Scanning the deceiving brain' by Sean A. Spence, and his colleagues (Psychiatry, Sheffield).  A better understanding of how people evaluate evidence as they come to decisions and of the neurological processes of deception should be of particular interest to judges and courtroom advocates.  The next article, Jeffrey Stake's treatment of 'The property' 'instinct', posits a neurobiological logic for this important human--and perhaps animal--institution.  Here, for example, we learn that experiments and observations in the field and laboratory suggest that the legal rules of temporal priority--first in time, first in right--and possession are grounded in what were evolutionarily stable strategies in the ancestral environment.  Moreover, the preferences that humans exhibit in disposing of their property on their deaths, both by dispositions in wills and by the laws of intestacy, tend to advance reproductive success as a result of inclusive fitness pay-offs.

The book closes with a group of four articles that revolve around the conundrum of criminal responsibility.  In 'For the law, neuroscience changes nothing and everything' Joshua Green (Psychology, Princeton) and Jonathan Cohen (Psychology, Princeton), advance a forceful attack on the idea of free will generally and on the patterns of criminal punishment that flow from a starting point of volition and blame.  Robert Sapolsky (Biology and Neurology, Stanford) offers a further critique of the law of criminal responsibility, making the explicit connection between 'The frontal cortex and the criminal justice system'.  In 'The emergence of consequential thought: evidence from neuroscience', Abigail Baird (Psychological and Brain Sciences, Dartmouth) and Jonathan Fugelsang review the emerging understanding of the physiology of brain maturation in adolescents and draw conclusions about the ability of this group to reason effectively about the consequences of their actions.  Finally, Oliver Goodenough poses the countervailing question: 'Responsibility and punishment: whose mind?'  He suggests that the psychology of punishment may have more to do with the legal tests of competency than the psychology of the offender.

In the remaining part of this review, as a philosopher, I shall offer some critical comments on the Green and Cohen piece, the most philosophical essay in this interesting and interdisciplinary collection.  The essay is generally well argued, at least once the tension in the catchy title is relaxed.  The authors claim that 'For the law, neuroscience changes nothing and everything'.  How is that possible?'

Existing legal principles make virtually no assumptions about the neural bases of criminal behavior, and as a result they can comfortably assimilate new neuroscience without much in the way of conceptual upheaval: new details, new sources of evidence, but nothing for which the law is fundamentally unprepared.  We maintain, however, that our operative legal principles exist because they more or less adequately capture an intuitive sense of justice.  In our view, neuroscience will challenge and ultimately reshape our intuitive sense(s) of justice.  New neuroscience will affect the way we view the law...by identifying the specific mechanisms responsible for behavior [and showing] that there is something fishy about our ordinary conceptions of human action and responsibility, and that, as a result, the legal principles we have devised to reflect these conceptions may be flawed.  (208)

The authors then claim that the law changes both nothing and, though indirectly, also everything which is clearly a contradiction.  So, which one is it?  I believe that, if pressed, the authors will readily admit that neuroscience changes at least something rather than nothing for the law.  This, I think, is the less catchy thesis which the essay purports to defend.  The argument proceeds first by drawing a distinction between consequentialist and retributivist justifications for state punishment and then by arguing that current legal doctrine, although officially compatibilist is ultimately grounded in intuitions about human free will that are incompatibilist and, more specifically, libertarian (in the metaphysical sense).  These intuitions are threatened by determinism and in particular by forthcoming deterministic neuroscience.  "New neuroscience will undermine people's common sense, libertarian conception of free will and the retributivist thinking that depends on it, both of which have heretofore been shielded by the inaccessibility of sophisticated thinking about the mind and its neural basis."  (208) As a result, the largely retributivist foundations of our criminal justice system will be shaken at their core.  "Retributivism, despite its unstable marriage to compatibilist philosophy in the letter of the law, ultimately depends on an intuitive, libertarian notion of free will that is undermined by science."  (209)

Though this does not change much to the conclusions the authors want to reach, it should be noticed that they may give an oversimplified picture of the "letter of the law" and its avowedly compatibilist nature.  Granting that "it is generally agreed that a legal excuse requires a demonstration that the defendant 'lacked a general capacity for rationality'"(212),

 it does not follow that that is all there is to the notion of criminal responsibility.  For example, the law assigns different levels of blame, and different punishments, to two agents whose mens rea is exactly the same.  Attempted murder is a different and less grave offence than murder even though it may have been a question of sheer luck that the would-have-been murderer failed in its endeavor.  If determinism is one ingredient of compatibilism, and the law is avowedly compatibilist, than luck should have no place in the law, for it has no place in determinism.  Yet, it may be argued it is quite present in the "letter of the law".  The authors may of course reply that though such considerations are present in the law and its practice, they are not in the letter of the law.  To show this type of discrepancy is after all one of the main points of their essay.  At that point, however, one has to be clearer about how to determine what is in the "letter of the law" and what is not (something at times particularly difficult within the Anglo-American legal tradition).

The authors also display a naïf optimism concerning the power of persuasion of science similar to that one could find at work in some of the luminaries of the Enlightenment and their attitude towards reason.  Having pointed out at different places that old philosophical arguments have long shown that the type of "magical mental causation" required by the retributivist theories is a non-starter, they place their trust on the power of hard science:

"Arguments are nice, but physical demonstrations are far more compelling.  What neuroscience does, and will continue to do at an accelerated pace, is elucidate the 'when', 'where' and 'ho' of the mechanical processes that cause behavior.  It is one thing to deny that human decision-making is purely mechanical when your opponent offers only a general, philosophical argument.  It is quite another to hold your ground when your opponent can make detailed predictions about how these mechanical processes work, complete with images of the brain structures involved and equations that describe their function."  (217)

Indeed, it is another thing.  Yet, many, many people are resistant to both 'nice arguments' and 'physical demonstrations', witness the attitudes of many believers and, more recently, of particular sets of them, such as creationists.  The authors submit that jurors of the future, fully aware of the mechanical nature of human decision-making, will cease to wonder whether, say, the defendant of a crime of passion, was really himself when he killed his wife, whether he did it of his own free will, whether he could have done otherwise, and whether he deserves to be punished (218).  Many may think along with the authors that the jurors of the future should not ask themselves these questions.  Based on the history of humanity, however, there is some solid evidence that they will.

In fact, the authors themselves examine some of the scientific reasons why despite their persistent efforts, scientifically minded philosophers have managed to talk almost no one out of the practice of attributing free will to others (219).  They review psychological and neuroscientific data which characterizes the mechanisms that underlie our sense of free will, and how these mechanisms can lead us to assume free will is operating when it is not, and how a scientific understanding of these mechanisms can serve to dismantle our commitment to the idea of free will.  In short, there is a fair amount of evidence suggesting that humans have a set of cognitive subsystems that are specialized for processing information about animate objects and a different set of cognitive subsystems for inanimate objects (220).  The former seem to be activated by simple patterns of movements even when such movements are generated by fictional inanimate figures such a triangles and circles moving about in a television screen.  People not only see these shapes as 'alive'.  They see beliefs, desires, intentions, emotions, personality traits and even moral blameworthiness.  Similarly, our cognitive subsystems for inanimate objects seem to be responsible for a number of systematic discrepancies between people's physical intuitions and the way the world actually works.

What is more, there are probably deep evolutionary explanations as to why humans may display a tendency to retributive punishment as well as a tendency to seeing the world as flatly Euclidean rather as curved space (223).  Yet, the form of knowledge afforded by these subsystems is only intuitive and we are not inescapably bound by it.  Just like Euclidean tendencies are useful when we navigate our everyday world but can and should be abandoned when we are planning to launch a spacecraft, so it may be pointless or even impossible to see others as purely mechanical agents in our everyday interactions and yet "it may not be pointless or impossible to adopt this perspective when one is deciding what the criminal law should be or whether a given defendant should be put to death for his crimes."  (223)

By framing the problem in these terms, the authors suggest that shifting from one cognitive system to another (from the intuitive one to the correct (rational?) one) is justified by our practical purposes.  That will be easily accepted in the case of physical knowledge at hand: the successful launch of the spacecraft depends on correct knowledge of space and its features, however, unintuitive.  However, the very idea of teleology, and hence that of a purpose, is precisely what is debated by retributivist punishment theories, at least in their pure form.  What is more, as the authors had previously claimed, our operative legal principles exist because they more or less adequately capture an intuitive sense of justice (208).  What sense of justice is left for us once we move away from the intuitive level as the authors suggest we do?

 Finally, the authors should tell us why, in the enlightened future they foresee, "The law will continue to punish misdeeds, as it must for practical reasons" (218).  The day it becomes clear to everyone that state punishment is neither deserved nor underserved, the only thing left in "punishment" will be hard treatment, the purpose of which may be deterrence and correction.  That day--one may speculate--statistics showing the inefficiency of hard treatment for these purposes will be given more weight than today.  At that point, hard treatment may simply be abolished in favor of other solutions.  If neuroscience ever achieves this feat, it will have changed more than just something for the law.

 

© 2007 Raffaele Rodogno

 

Raffaele Rodogno, Ph.D., Lecturer in Philosophy at the University of Geneva, Switzerland and Post-doctoral Research Fellow at the Swiss National Center for the Affective Sciences.


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