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Some hard questions about neurolaw: If you are interested in law and neuroscience, read this article

From Stephanie West Allen’s blog on Neuroscience and conflict resolution.

This blog takes the position that there is a difference between the mind and the brain. That point of view is probably obvious since I collaborate with one of the leading non-materialist neuroscientists Jeff Schwartz. (For more about non-materialist neuroscience, read his book The Mind and the Brain.) Because of my interest in the mind/brain question, I was intrigued with a new article I recommend to you.

I also found this article blog-worthy because I have been concerned about claims being made about what the brain can show us about legal matters such as liability, truth-telling, and criminal propensity. (See my posts here and here.) This new article entitled "Philosophical Foundations of Law and Neuroscience" looks at both the mind/brain and the use of neuroscience by the legal system. The abstract:

According to a wide variety of scholars, scientists, and policymakers, neuroscience promises to transform law. Many neurolegalists – those championing the power of neuroscience for law – proceed from problematic premises regarding the relationship of mind to brain. In this Article, we make the case that their accounts of the nature of mind are implausible and that their conclusions are overblown. Thus, their claims of the power of neuroscience for law cannot be sustained. We discuss a wide array of examples including lie detection, criminal-law doctrine, economic decision-making, moral decision-making, and jurisprudence.

Download the article here.

Here's an excerpt from the authors' take on the brain/mind question (footnotes removed):

Rather than arguing about where the mind is located (e.g., in the brain or elsewhere) we need to step back and contemplate whether this is the right question to ask. First, notice that the question of the mind’s location presupposes that the mind is a kind of “thing” or “substance” that is located “somewhere” (e.g., in the body). Why must this be so? Our answer is that it need not be, and is not. An alternative conception—the one that we contend is more plausible—of mind is as a diverse array of abilities exercised by a person. These abilities implicate a wide range of psychological categories including sensations, perceptions, cognition (i.e., knowledge, memory), cogitation (i.e., beliefs, thought, imagination, mental imagery), affectations (i.e., emotions, moods, appetites), and volition (i.e., intentions, voluntary action).

To be clear, we do not deny that a properly working brain is necessary for a person to engage in the diverse array of abilities that we collectively identify as mental life. Again, nothing could be further from the truth. But, while certain neural activity is necessary for a human being to

exercise these abilities, neural activity alone is not sufficient. The criteria for the successful exercise of an ability are not a matter of what is or is not in the mind or brain. These criteria—which are normative in nature—are the basis for our attribution of mental states to one another. To outline briefly one of the examples that we will explore below, consider what it means to “have knowledge.” We believe that “knowing” is not (just) having a brain in a particular physical state. Rather, it is having the ability to do certain things (e.g., to answer questions, correct mistakes, act correctly on the basis of information, and so on). Thus, if behavior, and not brain states, constitutes the criteria for “knowledge,” then it will make no sense to say that knowledge is “located” in the brain. The same is true for other psychological predicates—and for the mind itself. So, to the question “where is the mind located – the Cartesian soul or the brain?” – we think the best answer is ”neither.” The question of the mind’s location makes no sense. Humans have minds, but minds are not in them.

If you want to be thinking about the mind, the brain, and the law for the rest of the day, read the whole article.


Stephanie West Allen

Stephanie West Allen, JD, practiced law in California for several years, held offices in local bar associations, and wrote chapters for California Continuing Education of the Bar. While in CA, Stephanie completed several five-day mediation training programs with the Center for Mediation in Law, as well as a two-year intensive… MORE >

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