Michael Pardo and Dennis Patterson have written a Big Book, an ambitious book, on the relationship between neuroscience and law. Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience is the book, or at least one of the books, that the field of law and neuroscience has needed. To say that neuroscience is or even could be relevant to law rests on important presuppositions about the relationship between brain and mind, the nature of mind, the nature and purposes of law, and the relationship between mind and law. The theoretical and epistemological underpinnings of these enterprises remain under-examined in law and neuroscience scholarship. This is not because authors in the field are philosophically naïve – far from. Rather, it is because of the richness of the material and the newness of the field. There is much work to be done, and there will be for some time.
P&P great contribution with this work to law and neuroscience scholarship is to offer a non-reductionist argument for the possibility of a meaningful interrelationship between neuroscience and law. While accepting the materialist premise (there is no ghost in the machine), P&P take aim at a form of reductionism, eliminative materialism, that lies at the heart of much law & neuroscience scholarship. In so doing, they offer a strong case for the need to understand brains not as the fundamental unit of analysis and bearers of meaning but as components both in and shaped by an integrated system of signs and meanings. To take possibly unjustified poetic license with their work: Our astrocytes are as stars that live as much in the nomos as in the cosmos.
As a materialist who instinctively struggles to resist the pull of reductionism (whether I will win remains to be seen), I find P&P’s approach sympathetic and appealing. I also find some of their claims more convincing than others. They do great work asserting the non-identity of natural facts and social facts. Many social facts are real, yet they are not “things in the world” or “things in the brain.” They cannot be located with a brain scanner. Lying. Love. Violence. Criminality. These are meaningful concepts, meaningful experiences. They are not things. Efforts to find or measure the neural signatures of these states as if they were natural things – objects, no less – is a profound confusion. I have written on the problems with trying to use neuroscience to find so-called criminally violent brains. This is because criminal violence is a social category, not a natural category. Whether any particular act counts as criminal violence rather than correct or even laudable social performance rests entirely on the context of the action and the norms of the culture. We might find reliable markers that relate to some of these states, so that we can make an inference about a person’s subjective state, but we cannot find the thing because the thing does not exist as such to be found.
P&P continue to emphasize the role of norms in their challenge to Patricia Churchland’s work on brains that are or are not “in control.” Churchland asserts that neuroscience may help empirically address whether a person can be said to be “in control” and therefore an agent of the kind who can be criminally responsible for his or her conduct. P&P contest this notion, arguing that “[i]ncreased knowledge of brain chemistry will not answer normative questions about responsibility.” In some areas, they are doubtlessly correct. Their example of the dog owner who inadvertently allows his dog to escape and bite a child illustrates nicely that social and legal assignments of responsibility may be independent of brain state.
But other problems of brain state and responsibility may be more challenging, and may point toward a contribution for neuroscientific evidence and analysis. It may be that if a brain is “in control,” we cannot know enough to ascribe responsibility (criminal or otherwise) to the actor who possesses that “in control” brain unless we also know a great deal about the factual and normative context. This is P&P’s position, with which I wholly agree. However, if a brain is “not in-control,” then that might illuminate whether we properly can ascribe criminal responsibility of the current, conventional kind to the actor who possesses the “not in-control” brain. This is where some appreciation for Churchland’s contribution may come in. Unless the notion of responsibility, as well as the notion of excuse defenses for diminished capacity and diminished responsibility, are shams, then the law does (and is supposed to) care about the edge cases in which an actor is suffering from a sufficiently serious impairment that he cannot function as a typical agent. Whether the law *should* treat people with diminished capacities differently than typical actors is of course debatable; for today’s post, suffice it say that the law purports that it *does* make this distinction, at least in a limited fashion. And if it does make this distinction, it should do it legitimately: Doctrines that provide a degree of excuse for people with certain impairments should conform empirically to such impairments. Psychology, psychiatry, and neuroscience ought to have some role in elucidating such impairments, as well as helping to inform lawmakers (and the culture more broadly) about the reasonable expectations one might have as to people with such impairments.
To argue otherwise seems cynical, wasteful, or cruel. Should the law purport to offer an insanity defense, while crafting a legal definition of insanity that misdecribes mental illnesses to the point that no mentally ill person fits the letter of the defense? Cynical! Should the law have expectations about the current and future behavior of addicts so unrealistic, like that of perfectly relapse-free sobriety, that it contributes to the mass incarceration of largely non-violent offenders? Wasteful! Should people with brain injuries or diseases like temporal dementias, which leave them rationally aware but disinhibited, be punished for transgressive behavior that is itself the symptom of a lethal disease? Cruel! In each of these areas, where we already have (or may have) a normative intuition that punishment would be unfair, a more robust understanding of the neuroscience of being “not in control” might help us engage in more precise and appropriate legal decision-making. Over time, neuroscience might contribute to a more clearly delineated understanding of what “control” actually means, and what disorders impair this kind of control, that can inform our normative decisions about what, and how much, to punish.
Francis, Jane, Gabriel, Carter, and Nicole: What do you think?