Neurolaw in The NY Times

I originally hoped that my first post here would be more substantive than this one, but apparently that was not in the cards!  Instead, I simply want to point the Gardeners to an article in yesterday's NYT about neurolaw in the event that some of you have not already seen it.  I thought the crew here might not only find the piece interesting, but it might even open the door to yet another discussion here concerning the thorny relationship between the gathering data in the sciences of the mind and our (shrinking?) autonomy and responsibility. 

Comments

[Corey Tomsons]

While the data may suggest to some that autonomy is a hollow concept, at least some of the investigations in neurolaw seem to be directed towards increasing the scope of our legal responsibility. An interesting conflict within the discipline, perhaps?

[Alan]

The article is a terrific sweep of many of the relevant issues. But it surveys the issues from a perpsective that does not always consistently integrate current philosophical/empirical issues with standing legal tradition. For example, the author contends that current neuroscience conflicts with McNaughten's 1843 test of insanity as the inability to know the difference between right and wrong. So it may. But that overlooks the fact in the earlier part of the 20th century there were any number of legal defenses (Leopold and Loeb, e.g.), motivated by Pavlovian-type behaviorism, that raised the prospect of "irresistible impulse" as a valid defense--namely, one could know the difference between right and wrong but still not control one's actions (think in human terms of "kleptomania"--today's OCDs). In the 1950s the McNaughten tradition and the "impulse" tradition were unified by a study group (the American Law Institute) into a two-pronged test dubbed The Model Code. This Code--wildly influential in federal and state statutes codified during the 60s-70s--was, for example, in force in the John Hinckley case and led to his legal exoneration of his attempt to kill Ronald Reagan. It has 2 elements, usually put in the form of questions: (1) Did the accused have the substantial capacity to appreciate the criminality of his/her acts? (McNaughten) (2) Did the accused have the substantial capacity to conform his/her bevavior to the norms of law and society? (This is close to the basis of Susan Wolf's asymmetric claim of freedom as ability to choose the good.) A negative answer to either constituted legal exoneration. It is still the legal standard of insanity in (for example) Wisconsin.

Note that the 2nd prong of the Model Code relates to free will. After the Hinckley case, many states reacted by enacting statutes that allowed a finding of guilty with mental defect (Illinois e.g.). 3 states--Idaho, Montana, and Utah--abolished the insanity plea altogether.

This is extremely important in a way the article does not at all explicitly acknowledge. The long legal tradition of the west is that people are responsible by possession of mens rea--a guilty mind (rational free choice). The article in fact says: "The idea of holding people accountable for their predispositions rather than their actions poses a challenge to one of the central principles of Anglo-American jurisprudence: namely, that people are responsible for their behavior. . ." but this is not entirely right. *Freely chosen intent* is the cornerstone of all western jurisprudence--mens rea. This is not literally "predispositions"--but it is not mere wrongful behavior either. Legal guilt is established on the presupposition by the government that we have rational free will that underlies behavior--until proven by some standard otherwise. Except for the aforementioned 3 states--which appear to move away from the mens rea standard of responsibility, and I would think towards some other (compatibilist?) standard--the standard of free will intent is the overwhelmingly accepted one that determines whether we are responsible for our acts. And though the 2nd component of the Model Code is consistent with certain forms of compatibilism (Wolf's, e.g.), it is consistent with incompatibilist forms of free will as well--and, I would argue, probably derives from the latter as a default position on the nature of free will.

[Matt McAdam]

FYI - Jeffrey Rosen, the author of the NYT article, was interviewed by Terry Gross on NPR this afternoon. Here's a link to the podcast:
http://www.npr.org/templates/story/story.php?storyId=7871885

[Matt]

To my mind by far the best parts of the article were the skeptical remarks by Wax and Morse. Most of what's said was garbage. (Different parts of the brian light up when you _do different things_ or _have different thoughts_! My god, who would have thunk it! Anyone who wasn't a dualist, I'd guess.)