Thank you to Adam for the invitation to contribute to this online symposium. In the post below I ask the authors how their argument would apply in a legal context different from the ones considered in the book.
In Minds, Brains, and Law Michael Pardo and Dennis challenge us to better clarify out conception of the "mind". The authors reject both Cartesian Dualism and neuro-reductionism, arguing instead for a third-way: "[t]he mind is not an entity or substance at all (whether nonphysical (Cartesian) or physical (the brain)). To have a mind is to possess an array of rational and emotional powers, capacities, and abilities exhibited in thought, feeling, and action" (44).
While the book focuses primarily on criminal law to illustrate its claims, the argument is that clarifying our conception of the mind is a fundamental conceptual issue that has import for "every important question and debate" in neurolaw (46).
Given this definition of the mind above, what are its implications are for our conceptions of "mental health", "mental disorder", "mental injury" and by way of contrast "physical" or "bodily" injury?
The issue of defining concepts such as "mental injury" is timely and ripe with conflict. Mental health parity advocates (see Patrick Kennedy as a leading example) argue that mental disorders are brain-based and thus ought to be covered in the same way as phsical disorders. Courts (as Stacey Tovino has discussed) are struggling to draw the line between mental and physical for purposes of insurance claims and tort claims. Conceptual and philosophical questions related to mind/body abound in this domain, and additional clarity is needed.
Can the Pardo/Patterson thesis rescue this body of doctrine, or at a minimum, can it better clarify the conceptual errors being made? At present, the debate is between the two camps that Pardo/Patterson reject. On one hand, dualists (let's call them the insurance companies and tort defendants) want to invoke the traditional line between bodily/mental. On the other hand are those plaintiffs and advocates who argue that the mental = brain, and brain = physical, so mental disorders = physical disorders. Neither of these arguments seems consistent with the third way that Pardo/Patterson advocate.
So what do the authors suggest as a way forward in defining mental disorder, mental injury, and the like? If the mind is not an entity, then what (conceptually) is mental health and mental disorder? Is there any meaningful distinction for law to make between a mental disorder and a brain disorder, or between a disorder of the mind and a disorder of the body?