Abstract
Arguments for the importance of neuroscience reach across many disciplines. Advocates of neuroscience have made wide-ranging claims for neuroscience in the realms of ethics, value, and law. In law, for example, many scholars have argued for an increased role for neuroscientific evidence in the assessment of criminal responsibility. In this article, we take up claims for the explanatory role of neuroscience in matters of morals and law. Drawing on our previous work together, we assess the cogency of neuroscientific explanations of three issues that arise in these domains: rule-following, interpretation, and knowledge. We critique these explanations and in general challenge claims as to the efficacy of the neuroscientific accounts.
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Notes
We agree completely with the view that “[t]he brain is necessary but not sufficient to account for all the physiological and psychological properties that make each of us a unique person [2].”
For a sophisticated defense of this thesis, see Greene & Cohen [4].
Id. at 6 (“we need to look to the ways in which each of us, as a whole animal, carries on the processes of living in and with and in response to the world around us.”). See also Glannon [2]. Max Bennett and Peter Hacker have coined the phrase “the mereological fallacy” to refer to the error of ascribing properties to a part of an animal (the brain) that make sense only when ascribed to the animal as a whole. See Bennett & Hacker [5]. In Pardo & Patterson, supra note 1, we discuss several examples of the mereological fallacy within the neurolaw literature.
The areas are related in a deeper sense as well: to follow a rule or norm and to interpret a rule or norm both involve the application of one’s knowledge.
The criteria establish the norms for ascriptions of these concepts.
See, e.g., Mikhail [11] (“The moral grammar hypothesis holds that ordinary individuals are intuitive lawyers, who possess tacit or unconscious knowledge of a rich variety of legal rules, concepts, and principles, along with a natural readiness to compute mental representations of human acts and omissions in legally cognizable terms”). Mikhail takes his cue from some remarks by John Rawls in A Theory of Justice.
See Mikhail [13] (arguing that moral knowledge is “tacit” and based on principles that are “unconsciously” applied).
Assertions lack “sense” when their meaning is so unclear that they cannot be evaluated for their truth value.
See Baker & Hacker [14] (“There must be identifiable conditions that will differentiate between possession of tacit knowledge and total ignorance, conditions distinct from correct performance.”).
We discuss what it means to “possess” knowledge in more detail in “Knowledge” Section.
One is here reminded of the explanation that opium puts people to sleep because it has “dormative powers.”
Baker and Hacker [14] at 186.
The same difficulty besets Moral Realism. For discussion, see Patterson [15].
See Bennett & Hacker [16] (“But for something to constitute following a rule, the mere production of a regularity in accordance with a rule is not sufficient. A being can be said to be following a rule only in the context of a complex practice involving actual and potential activities of justifying, noticing mistakes, and correcting them by reference to the rule, criticizing deviations from the rule, and, if called upon, explaining an action in accordance with the rule and teaching others what counts as following the rule.”).
For discussion of this aspect of Dworkin’s jurisprudence and the dilemma posed for his theory of law, see Patterson [18].
Ludwig Wittgenstein, Philosophical Investigations §85: “A rule stands there like a signpost. Does the signpost leave no doubt open about the way I have to go? Does it show which direction I am to take when I have passed it; whether along the road or footpath or crosscountry? But where is it said which way I am to follow it; whether in the direction of its finger or (e.g.) in the opposite one?—And if there were, not a single signpost, but a chain of adjacent ones or of chalk marks on the ground—is there only one way of interpreting them?—So I can say, the signpost does after all leave no room for doubt. Or rather: it sometimes leaves room for doubt and sometimes not. And now this is no longer a philosophical proposition, but an empirical one.”
All interpretation presupposes understanding. No one could interpret the following: Nog drik legi xfom. The term first has to be translated or deciphered before interpretation takes place. Contra Quine, translation is not interpretation. Quine [19]. We interpret an utterance when we choose between different ways of understanding it. Legal interpretation is the activity of deciding which of several ways of understanding a rule is the correct or preferable way of understanding. This is precisely the sort of activity Wittgenstein has in mind when he writes: “we ought to restrict the term ‘interpretation’ to the substitution of one expression of the rule for another.” Witttgenstein, Philosophical Investigations at §201.
See Baker & Hacker [20] p. 667 (“[G]iving a correct explanation is a criterion of understanding, while the explanation given is a standard for the correct use of the expression explained. Correspondingly, using an expression in accordance with correct explanations of it is a criterion of understanding, while understanding an expression presupposes the ability to explain it.”).
Cited in G.P. Baker and P.M.S. Hacker, Wittgenstein: Rules, Grammar, and Necessity, at 136.
As discussed below, these questions are relevant to the mens rea element of crimes and insanity defenses.
See Sections “Unconcious Rule-Following” and “Interpretation”.
In other words, we are not concerned with the empirical question of whether someone knows (or fits the criteria) on a particular occasion, but rather with the general criteria for ascriptions of knowledge.
“To know” is an achievement or success verb; it refers to a kind of cognitive accomplishment.
The latter might be the case for someone no longer physically capable of performing a task but who still knows how to do something (perform a dance or play a sport, for example).
Bennett & Hacker [23] (“To know something to be thus-and-so is ability-like, hence more akin to a power of potentiality than to a state or actuality.”).
Id.
Noë [3] at 17.
As noted above, the behavior is not necessary either—someone may have knowledge and choose not to express or manifest it in any way.
Likewise, one may know how to do something but not be able to do so. On the distinction between “being able to” and “knowing how to” see Bennett & Hacker, History, [10] at 97–99.
On “two-way abilities” see id. at 97–98.
Model Penal Code § 2.02.
Id. at §2.02(b)(i).
Id. at §2.02(b)(ii).
Id. at §2.02(c)–(d).
See Clark v. Arizona [25]; M’Nagten’s Case, 8 Eng. Rep. 718 (1843).
Id.
Model Penal Code
Id.
See Aharoni et al. [26].
See O’Hara [27].
Perhaps the crime of perjury is an exception.
See Farwell & Smith [28].
Id.
The behavior provides “criterial” evidence of knowledge and the neuroscience provides “inductive” evidence of knowledge. If there is a discrepancy between them, the problem is with the inductive correlations; the brain activity, in other words, would not be well-correlated with knowledge.
For further discussion of the conceptual contours of memory, see Bennett & Hacker, History, [10] at 99–112.
Id. at 100.
See Glannon [2] at 325 (“it is misleading to ask questions such as ‘Where in the brain is the memory of one’s past?’”).
See Bennett & Hacker [10] at 107. Likewise, one can use a video recording to remember past events only if one remembers what the recording is a recording of.
See Kozel et al. [30], Langleben [31]. See alsohttp://www.cephoscorp.com/ and http://noliemri.com/.
For a discussion of the difference and illustrative examples, see Fallis [32].
The fact that lies are associated with increased brain activity may be problematic. It may detect novice liars, but fail to catch experts, if—like athletes and musicians—expert liars appear to generate less of the relevant brain activity than novices. See Milton et al. [33].
Although certain brain structures may be necessary to be capable of engaging in this behavior.
On the empirical limitations of current studies in establishing such correlations, see Monteleone et al. [34].
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Pardo, M.S., Patterson, D. Minds, Brains, and Norms. Neuroethics 4, 179–190 (2011). https://doi.org/10.1007/s12152-010-9082-4
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DOI: https://doi.org/10.1007/s12152-010-9082-4