Abstract
At the invitation of the Editors, we wrote an article (entitled, “Minds, Brains, and Norms”) detailing our views on a variety of claims by those arguing for the explanatory power of neuroscience in matters of law and ethics. The Editors invited comments on our article from four distinguished academics (Walter Glannon, Carl Craver, Sarah Robins, and Thomas Nadelhoffer) and invited our reply to their critique of our views. In this reply to our commentators, we correct some potential misunderstandings of our views and further clarify our positions with discussions of the conceptual-empirical distinction, rule-following, explanations at the personal and subpersonal levels, memory, and lie detection. Although we acknowledge many of the criticisms advanced by our distinguished colleagues, we conclude that, in several important respects, their criticisms confirm the points made in our original article.
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Notes
Walter Glannon, “Brain, Behavior, and Knowledge,” Neuroethics, at [manuscript p. 2].
Id.
We are puzzled by Professor Glannon’s claim, apparently advanced as a critique of our position, that “[a]n appeal to the brain alone does not make sense as a criterion of knowledge. But behavior alone is not sufficient either.” Id. at 7. We do not claim that “behavior alone” is a sufficient criterion for knowledge. Our claim is that what constitutes “knowledge” is not dictated by the brain. Of course, particular brain states may accompany behavior deemed to evince knowledge. We agree with Professor Glannon when he states: “The subcortical cerebellum and the striatum . . . mediate procedural memory. . . Behavioral evidence is necessary to know that one can or cannot follow rules involving procedural memory.” Id. at 3. Indeed, nothing in our analysis is to the contrary. Similarly, we do not deny that “[k]nowing how to perform a cognitive task does not have an exact location in a specific part of the brain. But it does not follow from this that practical knowledge does not have a neurobiological underpinning.” Id. at 6.
Whether a particular neurological state is necessary for a particular behavior on a particular occasion is an important empirical question, depending on, among other things, evidence regarding modularity, localization, and plasticity.
When we say that an assertion lacks “sense,” what we mean is that the locution in question is so confused that it cannot be evaluated for its truth value.
Id. at 3.
Professor Glannon claims: “it is not brains but persons who follow rules, lie, and deceive. Persons perform these actions as social beings interacting with others. Yet failure to emphasize that persons’ brains enable these actions comes dangerously close to the substance dualism the authors claim to reject.” Id. at 7. As we have said: we agree that having a brain is a necessary prerequisite to engaging in human action. We do not deny this. And we agree wholeheartedly with the first part of this quote. As for the claim about “substance dualism,” however, we do not see how this follows from what we have said.
Sarah K. Robins & Carl F. Craver, “No-Nonsense Neurolaw,” Neuroethics, at [manuscript p. 1].
Id. at 3.
Id. at 5.
In our main article, for example, we wrote that “particular neurological states . . . may be a necessary condition of various mental activities” and that “we do not contest that neuroscience may illuminate how these activities depend upon the brain and how damage or defects in the brain may affect one’s mental activities.” Michael S. Pardo & Dennis Patterson, “Minds, Brains, and Norms,” Neuroethics, at [manuscript p. 2]. Similarly, with regard to memory and knowledge, we wrote that “[t]his is not to suggest that certain brain states and synaptic connections are not necessary” and that “understanding these conditions is an important avenue of neuroscientific research.” Id. at 22. Likewise, in another article we have made similar points, concluding that our analysis “in no way implies that neuroscience cannot make valuable contributions to law” and that “neuroscience may contribute greatly” by indentifying necessary conditions for various mental activities and capabilities and by providing “good inductive evidence” of such activities and capabilities. Pardo and Patterson [1], at [proofs p. 140], available at http://ssrn.com/abstract=1338763.
In our main article, we noted with regard to lie detection that “neuroscientific evidence might reveal that certain brain activity is inductively well-correlated with this behavior.” “Minds, Brains, and Norms,” at 23. We agree that this might serve the basis for probative juridical evidence. We also recognized this point in “Philosophical Foundations of Law and Neuroscience,” at 120. And one of us has discussed in more detail the evidentiary and constitutional issues this proposed evidence raises [2].
Robins & Craver, supra at 7.
Id. at 7.
We agree with Robins and Craver that the judgment that one is lying in particular instances will often be a matter of “inference to the best explanation” and that subpersonal details may be part of what needs to be explained. In the context of memory, we also agree that engrams may figure in the causal explanation of how remembering is possible. As we have stressed, what enables one to remember plays no role in answering the question whether or not one remembers correctly. In the context of “remembering,” Robins and Craver claim that both remembering and relearning are examples of “retained knowledge.” Id. at 8. We simply do not understand how relearning something can be retained knowledge.
Robins & Craver, supra at 6.
Id.
Id.
Id. at 11.
Id. at 11–12.
Id. at 11.
For example, consider the conceptual questions raised by whether Libet’s studies were measuring intent (and, if so, what kind of intention) or something else. See Mele [4]. We think these conceptual questions about intent, like the empirical subpersonal questions, are of practical significance (and not “tangential”) if neuroscience is used to inform legal issues of intent.
Moreover, these conceptual issues sometimes interact with quite specific doctrinal questions. For example, the constitutional privilege against self-incrimination under the Fifth Amendment applies to evidence of a “testimonial” nature but not to “physical” evidence. Therefore, is a brain scan that shows activity correlated with lies or deception “testimonial” or “physical”? And does the distinction depend on a particular conception of mind? For an argument that the distinction depends on an untenable Cartesianism see Easton [5]. For an argument that the distinction does not depend on a problematic conception of mind, and that the privilege ought to apply to brain scans that provide evidence of the content of a defendant’s propositional attitudes see Pardo [6].
Thomas Nadelhoffer, “Neural Lie Detection, Criterial Change, and Ordinary Language: A Commentary on Pardo and Patterson,” Neuroethics.
Id. at 6.
Id. at 14.
For numerous examples of conceptual change in light of scientific developments see Wilson [7].
Nadelhoffer, supra at 2.
Id. at 9.
She may have lied and committed perjury regardless of whether she intended to deceive anyone. For example, suppose she were threatened by the defendant and hopes the jury sees through her knowingly false testimony. See Fallis [8].
Nadelhoffer, supra at 11.
See [10]. It is also the case that “people on the street” sometimes say nonsensical things about law. Consider, for example, many of the claims about whether or not a judge is “activist” (or “makes law” rather than “applies law”). Often these claims are not only false but nonsense, because no sense has been given to the term “activist.”
For an argument that, as with legal training with regard to law, philosophical training may improve one’s judgments about the application of epistemic concepts see Williamson [11].
References
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Monti, Martin M. et al. 2010. Willful modulation of brain activity in disorders of consciousness. New England Journal of Medicine (February 3).
Mele, Alfred R. 2009. Effective intentions: the power of conscious will.
Easton, Susan. 1998. The case for the right to silence, 2nd ed, 271.
Pardo, Michael S. 2009. Self-incrimination and the epistemology of testimony. Cardozo Law Review 30: 1023.
Wilson, Mark. 2006. Wandering significance: an essay on conceptual behavior.
Fallis, Don. 2009. What is lying? Journal of Philosophy 106:29.
Tversky, Amos, and Daniel Kahneman. 2002. Extensional versus intuitive reasoning: the conjunction fallacy in probability judgment. In Heuristics & biases: The psychology of intuitive judgment, ed. Gilovich, Griffin and Kahneman, 19–48.
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Williamson, Timothy. 2007. The philosophy of philosophy 187–95.
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Pardo, M.S., Patterson, D. More on the Conceptual and the Empirical: Misunderstandings, Clarifications, and Replies. Neuroethics 4, 215–222 (2011). https://doi.org/10.1007/s12152-010-9083-3
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DOI: https://doi.org/10.1007/s12152-010-9083-3