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Peter A. Alces considers where and how the law currently fails to appreciate the neuroscientific revelation that humans may in key ways lack normative free will—and therefore moral responsibility. The most accessible setting in which to consider the potential impact of neuroscience is criminal law, as certain aspects of criminal law already reveal the naiveté of most normative reasoning, such as the inconsistent treatment of people with equally disadvantageous cognitive deficits, whether congenital or acquired. But tort and contract law also assume a flawed conception of human agency and responsibility. Alces reveals the internal contradictions of extant legal doctrine and concludes by considering what would be involved in constructing novel legal regimes based on emerging neuroscientific insights.
Product Details
| ISBN-13: | 9780226513676 |
|---|---|
| Publisher: | University of Chicago Press |
| Publication date: | 12/22/2022 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 391 |
| Sales rank: | 335,759 |
| File size: | 760 KB |
About the Author
Read an Excerpt
CHAPTER 1
Contours of the Conflict
The Question in Context, the Thesis
From the criminal law: A middle-aged school teacher rather suddenly began to solicit prostitutes and also to make subtle sexual advances to his prepubescent stepdaughter. After he was convicted of child molestation and then expelled from an inpatient rehabilitation program, a magnetic resonance image (structural MRI) revealed that the teacher had a large tumor on his orbitofrontal cortex, a portion of the brain involved in the regulation of social behavior. The tumor was removed, and he returned to his normal self. But the deviant behavior began again. It was discovered that the tumor had not, in fact, been completely excised and had grown back. When the tumor was then completely removed, the teacher was cured.
From the tort law: A train approached an intersection in a Michigan town, and the operator observed a school bus entering the grade crossing and attempting to cross the grade by driving around the lowered gate. The train was traveling at sixty-five miles per hour, too fast to stop within the available distance. The train collided with the school bus. The operator thought the bus had been filled with children. It was not; only the bus driver was injured, though severely. The train operator suffered posttraumatic stress disorder (PTSD) and sought to avoid the defendant school district's interposition of a governmental immunity defense by alleging that he had suffered a serious impairment of bodily function, the PTSD. The court relied on a positron emission tomography (PET) scan to find the cause of the PTSD: "decreases in frontal and subcortical activity consistent with depression and posttraumatic stress disorder." There was a "bodily injury" to the operator's brain, "significant change in brain chemistry, brain function, and brain structure"; the PTSD was not just "in his head."
And from the contract law: The decedent entered into a contract to sell approximately five hundred acres of land and a wheat crop. When the plaintiff-buyer brought a specific performance action to have the contract enforced and the sale effected, the appellate court relied in part on the testimony of a neurologist who examined the results of a structural MRI of the decedent's brain and "found evidence of brain shrinkage and hardening of the arteries ... consistent with dementia." The court decided that the decedent was not competent to enter into the contract and refused to enforce the sale.
The object of law is practical: to direct, even mold, human behavior; law is, therefore, normative. That is true whether you think law should be measured by its consequences or by realization of some more ethereal object. For law to work, to accomplish whatever goals, instrumentalist or noninstrumentalist, we have in mind, law must affect the human agent. So law must take the qualities of the human agent, what we are, seriously: What does it mean to be human?
Law relies on a conception of human agency; it must. Law takes for granted certain human attributes, both in prescribing and proscribing behavior. Indeed, for the last century the story of law has been the story of increasing acuity about the human condition: the legal realist movement of the twentieth century and the numerous "law and ..." initiatives that followed thereon were designed to improve law by making it more responsive to what the "ands" (economics, sociology, psychology, etc.) revealed, scientifically or otherwise empirically. Economics, sociology, psychology, statistics, as examples, all can improve law by making it more consonant with revealed truths about the human condition, including our essential nature. Perhaps a natural development, even a culmination, of law's incorporation of insights from other areas of inquiry is a narrower focus on what it is that makes humans unique: our brain. Although all characteristics of sentient beings are points on a continuum, we may say with some confidence that what most certainly distinguishes humans from other life forms is our brain. We communicate, manipulate, and think about our own and others' thinking because of the particular way in which the human brain is organized and constructed. You may not believe that there is a supernatural reason for that uniqueness, but you cannot deny the uniqueness.
Within the last several years, likely owing to developments in our ability to look into the brain, research into how the brain defines what and who we are (as a species and individually) has given reason to reconsider what it means to be human. Surely we are more than the product of trillions of chemical and electrical processes — or are we? And even if something emerges that is more than such processes, can a better understanding of the underlying mechanics lead to a better understanding of human behavior and the role of mechanisms such as law that would affect human behavior? Can brain science, that is, neuroscience, affect law?
That question is now more than rhetorical. Certainly what we know about the brain has an effect on our law: We do not execute those who are profoundly intellectually impaired or even punish those whose apparently aggressive action was in fact the result of an epileptic seizure. So the criminal law at those margins surely is considerate of brain science. Similarly, law cares about state of mind in the imposition and measure of tort and contract liability: We do not impose civil liability in tort on those below a certain age, and we are comfortable reciting that contract liability will not lie if there has been no meeting of the minds. But those venerable examples of law's deference to empirical reality, cognitive limitations, are the product of a time when we knew less about the brain than we do now.
The question is how the law will (or should) respond to what developing neuroscientific insights have to tell us about the human agent. It may be in the first instance difficult to gain purchase on that inquiry in the most general terms, but surely we would all agree that there may be certain discrete criminal, tort, or contract law rules that would be subject to adjustment as we learn more about the human brain and its development. Recent United States Supreme Court decisions evidence willingness to take into account what the science reveals. And if there is a way to objectively and certainly demonstrate emotional pain, it is likely that courts will be receptive to such evidence and that legal doctrine will respond as well.
The object of this book is to take account of the current conceptions of the moral foundation of law, as revealed in illustrative aspects of the criminal, tort, and contract law, and compare those conceptions with human agency as revealed by the emerging neuroscience. The thesis here is simple: If emerging brain science reshapes what we understand to be the meaning of being human, then that same brain science must reshape our law, from the moral foundations up.
This introductory chapter describes, in broad strokes, the tensions engaged when we consider the effect that developments in neuroscience may have on law. Subsequent chapters chart a course through the doctrinal and theoretical thicket. The focus here is on the normative, or moral, underpinnings of the criminal, tort, and contract law: What does neuroscience reveal about the human agent that may affect the moral presumptions (and objects) of law? What happens at the normative intersection of law and neuroscience? Law, perhaps uniquely in human affairs, depends on morality: We would not brook immoral law; from at least one perspective, immoral law might even be an oxymoron. So the moral conflict of law and neuroscience is a worthwhile and, indeed, particularly important juncture at which to measure the impact of neuroscience on what it means to be human. As we shall see, just about all of the big issues, many summarily surveyed in this first chapter, are implicated.
The Received Wisdom
Neuroscience challenges the received wisdom, the sense we all have that we, as a species and even individually, are unique among the stuff of creation. We assume that we are more than mechanisms, more than the sum of our parts, and so not reducible to chemical and electrical processes. There is something that distinguishes us from inanimate and other animate objects and entities; we just feel it to be so. And religious as well as ethical precepts and practices reinforce that specialness. The sense of uniqueness may entail certain predispositions or moral commitments. For example, we believe that we and others think first and then act (and so are therefore responsible), that there is some homunculus inside that reviews the choices we confront and makes the decision for which we are accountable (thus that persistent internal monologue), that the mere fact that something exists does not make it right (the is–ought tension or naturalistic fallacy), and that we can infer the state of mind of others and respond to them on the basis of those inferences (folk psychology and theory of mind). That list is illustrative, not exhaustive, but it suffices to demonstrate how this felt sense of uniqueness manifests itself.
Neuroscience challenges that orthodoxy and so challenges conceptions of ourselves that have provided the moral foundation of law. Further — and this is crucial for the instant study — if normative theories of law, either instrumental or noninstrumental, depend on that received wisdom in ways that the neuroscience would undermine, then neuroscientific insights may challenge the very foundation of our law. Now, we may conclude that law is not based on a moral theory that depends on the received wisdom (or aspects of it), but then we would have to determine what the moral basis of law is, perhaps ultimately what morality is.
According to the received wisdom, morality has something of the ethereal about it: Morality is aspirational; it declares what we can be if we realize some object, perhaps making due allowance for reasons why we fail to realize that object. Our morality surely does not depend on the same forces that explain opposable thumbs or the ability to walk upright. We just know that morality is a uniquely human thing; your dog cannot be moral or immoral (except that she acts in a way that we would describe as moral if a human did it). As we shall see, neuroscience and the more empirical sense of morality that neuroscience suggests cuts into the received wisdom at this crucial joint. It is worthwhile to consider here, albeit summarily, the dichotomies revealed at the intersection of law and neuroscience, where law and neuroscience conflict. The chapters that follow will treat many of these issues in more depth. For now, though, in order to preview the argument of this book, it suffices to sketch in broad outline some important distinctions.
Is Naturalism Fallacious?
It has become something of a truism that "is" does not entail "ought": We cannot reach a correct moral conclusion from an accurate empirical observation; might, for example, does not make right. Those who are fit may have better survival chances, but that does not give them a superior claim to survival. The so-called naturalistic fallacy just points out the difference between "is" and "ought." There is, though, a sense in which "is" may be a measure of "ought," and it is in that sense that insights offered by more empirical approaches to morality challenge the conclusion that the equation of "is" and "ought" is necessarily fallacious.
Consider your reaction to a child, perhaps your child or grandchild. We can identify a good evolutionary reason for the natural tendency or even desire to comfort that child when he is in distress. In fact, resisting the urge to come to the child's aid may make you uneasy, even physically uncomfortable. You extend your arms to him and embrace him, perhaps cooing soothingly as much for your own sake as for the sake of the child. We all understand that reaction, even on a physical level. But if we see an older man, destitute, homeless, curled up in a box on the street of our city, the reaction may not be, and in all likelihood is not, the same. Now that is not to say that as a moral matter (according to some coherent moral code) the reaction should not be the same. Indeed, the homeless adult may be in more distress and less at fault for his circumstances. The child may be crying because his diaper is wet; the homeless adult may be very ill, mentally or physically (a distinction, we shall see in due course, that ultimately proves specious).
The fact that we are attracted to the infant in distress at some emotional-physical level and not similarly affected by the homeless adult is a fact, an "is." We can certainly rationalize the divergent reactions; we can even weave an "ought" out of the emotional-physical responses. But we cannot deny that the two scenes affect us differently. Indeed, it would not be cynical or difficult to tell a story that makes some kind of sense of the different reactions, that reconciles the emotional and the moral. It may be that first we experience the emotional reaction and then rationalize it by embedding that emotional reaction in a moral rationalization. The emotional reaction becomes the moral conclusion (and then maybe we codify the moral conclusion and call it law). So though we hesitate to say that the "is" (the emotional reaction) determines the "ought" (the moral conclusion flowing therefrom), we cannot deny the coincidence.
In Principia Ethica, G. E. Moore argued that it is error to equate what is with what is good. Moral properties cannot be reduced to physical properties. That idea has been developed and criticized. Contemporary normative empiricists proceeding from a naturalistic perspective can assert, at least after a fashion, that "is" does equal "ought," but a good deal depends on what we mean by "is" and "ought."
Sam Harris, a noted atheist, understood the challenge presented by Moore's identification of the naturalistic fallacy and observed that "Introspection offers no clue that our experience of the world around us, and of ourselves within it, depends upon voltage changes and chemical interactions taking place inside our heads. And yet a century and a half of brain science declares it to be so." It is more than a bit discomfiting to reduce human agency to nothing more than physical reactions, albeit of awesome complexity. Harris asserted that all human normativity is based on human thriving but also recognized that that equation does not clarify much.
Patricia Churchland offered resolution of the is–ought tension in naturalistic terms: "[M]orality can be — and I argue, is — grounded in our biology, in our capacity for compassion and our ability to learn and figure things out. As a matter of actual fact, some social practices are better than others, some institutions are worse than others, and genuine assessments can be made against the standard of how well or poorly they serve human well-being." What inures to the net benefit of humankind, construed in evolutionary terms, that is, reproductive success, is a viable measure of goodness. But that naturalistic equation works only so long as what brings pleasure leads to evolutionary success, and it is not clear that all conceivable measures of human goods or capabilities result in reproductive success. It remains important not to simply dismiss out of hand noninstrumental perspectives of human goods and capabilities as quaint but wholly insubstantial. A thoroughgoing naturalism need not be so dismissive. It may be the case that the noninstrumental argument supporting naturalism's fallaciousness resides in the idea that there is a source of the good that goes beyond (in a sense, at least) human thriving.
The work of deontology is not complete with the demonstration that there is more to life, to life well lived, than reproductive success. It may be that noninstrumental appeals to not-obviously-consequentialist goals are not different, at the cellular level, from reproductive success. Aesthetic experiences may be different in kind from sex but no less grounded in neural composition. Deontology may demonstrate that a range of sensations may matter to human thriving. But that demonstration would not establish that there is any greater good than human pleasure. Indeed, naturalists can establish a connection between our ostensibly pure aesthetic sense and reproductive success.
Even once we come to terms with the parameters and dimensions of the naturalistic fallacy, we need to appreciate the contours of a different, quite practical, challenge: the way we navigate the space between and among ourselves. Granting that we are social animals, need social stimulation in order to remain sane, how do we make sense of the relations among one another? Do we need to actually read minds? Or just act in ways that seem as though we can read minds? We will see that how we conceptualize our perceptions of one another matters to law, and that neuroscientific insights may affect law's assumptions.
(Continues…)
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Table of Contents
Acknowledgments, Debts, and Admiration
Preface, Premises, and Progress of the Argument
Chapter 1. Contours of the Conflict
Chapter 2. Neuroscience and Criminal Law Doctrine
Chapter 3. Neuroscience and Criminal Law Theory
Chapter 4. Neuroscience and Tort Law Doctrine
Chapter 5. Neuroscience and Tort Law Theory
Chapter 6. Neuroscience and Contract Law Doctrine
Chapter 7. Neuroscience and Contract Law Theory
Chapter 8. An Age of Realization
Notes
Bibliography
Index