This book addresses the philosophical questions that arise when neuroscientific research and technology are applied in the legal system. The empirical, practical, ethical, and conceptual issues that Pardo and Patterson seek to redress will deeply influence how we negotiate and implement the fruits of neuroscience in law and policy in the future.
ABSTRACTThis article defends the importance of epistemic safety for legal evidence. Drawing on discussions of sensitivity and safety in epistemology, the article explores how similar considerations apply to legal proof. In the legal context, sensitivity concerns whether a factual finding would be made if it were false, and safety concerns how easily a factual finding could be false. The article critiques recent claims about the importance of sensitivity for the law of evidence. In particular, this critique argues that sensitivity does (...) not have much of an effect on the value of legal evidence and that it fails to explain legal doctrine. By contrast, safety affects the quality of legal evidence, and safety better explains central features of the law of evidence, including probative value, admissibility rules, and standards of proof. (shrink)
Bringing together the latest work from leading scholars in this emerging and vibrant subfield of law, this book examines the philosophical issues that inform the intersection between law and neuroscience.
Legal scholarship exploring the nature of evidence and the process of juridical proof has had a complex relationship with formal modeling. As evident in so many fields of knowledge, algorithmic approaches to evidence have the theoretical potential to increase the accuracy of fact finding, a tremendously important goal of the legal system. The hope that knowledge could be formalized within the evidentiary realm generated a spate of articles attempting to put probability theory to this purpose. This literature was both insightful (...) and frustrating. Much light was shed on the legal system, but it also quickly became evident that the tools of probability theory were in many ways ill-constructed for the task. Fundamental incompatibilities between the structure of legal decision making and the extant formal tools were identified, and it became evident that many of the purported explanations of legal phenomena were internally inconsistent. As a consequence, interest in this type of formal modeling declined, and attention was directed toward different kinds of explanations of the phenomena. Perhaps under the influence of a recent trend toward various types of formal modeling in legal scholarship, a recent burst of articles, rather than attempting to explain the macro structure of trials, which was the previous object of interest, attempts to quantify the probative value of various items of evidence in ways consistent with the formal features of various probability theories, and then to study decision making from that perspective. For example, the value of evidence is often purported to be its likelihood ratio, that is, the probability of discovering or receiving the evidence given a hypothesis (e.g., the defendant did it) divided by the probability of discovering or receiving the evidence given the negation of the hypothesis (the defendant didn't do it). Alternatively, the value of evidence is purported (more contextually) to be the information gain it provides, defined as the increase in probability it provides for a hypothesis above the probability of the hypothesis based on the other available evidence. Both conceptions then assume that all of the various probability assessments conform or ought to conform to the dictates of Bayes' theorem (that maintains consistency among such assessments); empirical studies are then done testing the extent to which this is so and proposing how the law can increase the probability that it is so. The general criticisms of using Bayes' theorem as a formal model of juridical proof are well known and were integral to the last wave of interest in formal modeling of the evidentiary process. This paper thus for the most part puts aside that more general issue, and focuses specifically on mathematical modeling of the value of particular items of evidence. The paper demonstrates that formal modeling has only limited value in explaining the value of legal evidence, much more limited than those constructing and discussing the models assume, and thus that the conclusions they draw about the value of evidence are unwarranted. This is done through a discussion of four recent examples that attempt to quantify evidence relating to, respectively, carpet fibers, infidelity, DNA random-match evidence, and character evidence used to impeach a witness. This article thus makes two contributions. First, and most importantly, it is another demonstration of the complex relationship between algorithmic tools and legal decision making. Second, at a minimum it points out serious pitfalls for analytical or empirical studies of juridical proof. (shrink)
This article provides an analysis of the ethical behavior of managers making goodwill impairment decisions following the adoption of the International Financial Reporting Standard 3 on Business Combinations. Replacing the systematic amortization of goodwill with the impairment-only approach has been a highly controversial step. Although the aim of IFRS 3 was to provide users with more value-relevant information regarding the underlying economics of the business, it has been criticized for the potential earnings management inherent in impairment testing. This study is (...) based on a sample of Spanish-listed companies between 2005 and 2011, a period that embraces the economic crisis. After controlling for the underlying economic factors of the firms, the results suggest that managers are exercising discretion in the reporting of goodwill impairment losses, and big bath and smoothing strategies are influencing the decisions, whether or not to impair goodwill and about the magnitude of the impairment. Firm size is an attribute that appears significant in the analysis, suggesting that the cost and complexity of running the impairment test affect managers’ decisions. Additional analyses suggest that the macroeconomic environment influences opportunistic and unethical behaviors. (shrink)
Pickering & Garrod's (P&G's) mechanistic theory of dialogue attempts to detail the psychological processes involved in communication that are lacking in Clark's theory. By relying on automatic priming and alignment processes, however, the theory falters when it comes to explaining much of dialogic interaction. We argue for the inclusion of less automatic, though not completely conscious and deliberate, processes to explain such phenomena.
We present here the hypothesis that the unique microenvironmental pH landscape of acid‐base transporting epithelia is an important factor in development of epithelial cancers, by rendering the epithelial and stromal cells pre‐adapted to the heterogeneous extracellular pH (pHe) in the tumor microenvironment. Cells residing in organs with net acid‐base transporting epithelia such as the pancreatic ductal and gastric epithelia are exposed to very different, temporally highly variable pHe values apically and basolaterally. This translates into spatially and temporally non‐uniform intracellular pH (...) (pHi) patterns. Disturbed pHe‐ and pHi‐homeostasis contributes to essentially all hallmarks of cancer. Our hypothesis, that the physiological pHe microenvironment in acid‐base secreting epithelia shapes cancers arising in these tissues, can be tested using novel imaging tools. The acidic tumor pHe in turn might be exploited therapeutically. Pancreatic cancers are used as our prime example, but we propose that this concept is also relevant for other cancers of acid‐base transporting epithelia. (shrink)
La filosofía no está para que tranquilice nuestras conciencias, para que nuestra razón se sienta en "casa", sino que es una caja de herramientas. Algunas de las pre-guntas que nos plantea el pensamiento de G. Deleuze son: ¿qué podríamos hacer o experimentar con ella?, ¿cómo podremos devenir en ella?.
This article discusses listening that is appropriate to sound art and the associated changes in the paradigms, or thought patterns, that occur so often when we move from visual to aural perception. The distinction between historically accepted and rejected sounds is used to show how putting sounds in cages has fashioned a form of listening and of life. Twentieth-century experimental music and, especially, the music and the reflections of John Cage have opened these cages of sound and at the same (...) time weakened the visual paradigm for intellectual knowledge. This article examines sound art as a place where artistic practices coincide with certain theoretical issues centered on sound. The centrality of sound is approached first, and music and sound art are discussed in relation to space. Second, the attention to sound in the reception of prominent examples of sound art focuses on site-specific relationships with the city and with listening. The article concludes by affirming the need for an aesthetic reflection that takes into consideration the implications of these profound transformations. However, that is another cage yet to be opened. (shrink)
The will to escape from the so called Metaphysics of Presence has become a topic in contemporary philosophy. However, this topic is often related to the primacy, in ancient thought, of the actual being, and the correlative evaluation of the potential as an imperfect way of existence. In this text we first analyze the traditional interpretation of the foundations of this primacy in Aristotle’s philosophy, that exhibits a theological form. According to this we explore, in the second part of the (...) article, how the efforts of modern thinkers to build an ontological discourse free from this primacy have produced, in some cases, a kind of Umkehrung resulting in a Metaphysics of Absence that preserves the theological form and results in a primacy of the potential, that is specifically consistent with the Imperium of the Virtual, very illustrative of nowadays conceptions of time, language, power and being. Finally, we essay to offer another interpretation of the primacy of the actual in Aristotle’s Ethics and Metaphysics, which could identify a political philosophy capable to avoid the infertile alternative Presence/Absence in ontology. (shrink)
This chapter highlights how the encouragement of citizens' participation may in fact masquerade their rulers' attempt to create consensus for their ‘superior’ political project. It illustrates in ethnographic detail how rulers have symbolically used the public space, along with policies of urban regeneration, to win popular consensus and, thus, legitimise their position. The analysis addresses a central problem in the dynamics of democratic government, as it shows that lack of responsibility and superimposition of a political rhetoric on good governance eventually (...) leads to people's distrust of those in power. The case of Naples significantly points to the fact that, while people may be granted formal membership of society, rulers' pedagogic approaches and self-legitimisation do in fact deny fundamental citizenship rights, such as social and economic rights. (shrink)
Western élite groups’ moralities and actions can and should be studied empirically. Contrary to belief held in the 1980s in mainstream social anthropology that fieldwork in the classic anthropological fashion could not be done among the western élite, the findings of long-term research in this field have yielded key ethnographic insights leading to academic and public debate. In this article I draw on ethnographic research on legitimacy, power, and governance among key Neapolitan élite groups to offer reflections on a style (...) of governance that has at once engendered and thrived on the blurring of the dividing line between what is legitimate and what is not legitimate in public life. The discussion focuses on powerful, tightly networked groups that, inspired by an elitist philosophy of power, have been hard at work to gain and maintain power, while losing trust and authority. The analysis builds towards an understanding of their implosion and of the corresponding erosion of the relationship between citizens... (shrink)
Stephen Morse’s illuminating scholarship on law and neuroscience relies on a “folk psychological” account of human behavior in order to defend the law’s foundations for ascribing legal responsibility. The heart of Morse’s account is the notion of “mental state causation,” in which mental states cause behavior. Morse argues that causation of this sort is necessary to support legal responsibility. We challenge this claim. First, we discuss problems with the conception of mental causation on which Morse appears to rely. Second, we (...) present an alternative account to explain the link between mental states, reasons, and actions. We argue that the alternative account avoids the conceptual problems that arise for Morse’s conception of mental causation and that it also undergirds ascriptions of legal responsibility. If the alternative succeeds, then Morse’s conception of “mental state causation” is not necessary to support legal responsibility. (shrink)
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. (shrink)
Resumen: La dimensión teórica del estudio de la violencia escolar ha quedado rezagada en el campo de la investigación en educación. Se constata un déficit explicativo y en consecuencia de orden teórico, con ciertos reduccionismos y una proliferación de mediciones de conductas. En este artículo se plantea la necesidad de pasar de un objeto binario que separa, a veces en términos de oposición, la escuela de la sociedad a un objeto de estudio de tres dimensiones: las violencias que produce la (...) escuela; las violencias que se reproducen en la escuela; las violencias que cruzan la escuela. Esta reformulación tríadica del objeto de estudio es producto de una línea de investigación y de la revisión de la literatura indexada entre el año 1990 y 2015.: School violence theoretical research has been falling behind in the field of education research. An explanatory deficit emerges and therefore also theoretical, with certain reductionism and a proliferation of behavior measurement. This article focuses on the need of moving from a binary object that puts apart, sometimes in terms of opposition, the school from society, to an object of study with three dimensions: different forms of violence produced by the school itself; different forms of violence that are reproduced at the school; different forms of violence that pass through the school. This triadic reformulation of the object of study is the result from a line of research and the review of indexed literature between 1990 and 2015. (shrink)
En los círculos ortodoxos kantianos suelen disculparse las incoherencias del maestro diciendo que era un "hijo de su tiempo". Ciertamente, en su época aún se excluía en toda Europa a las mujeres de la ciudadanía activa, privándolas de ser sujetos políticos y, con ello, sujetos éticos, de derecho, e incluso, históricos. Pero también es verdad que en ese momento está emergiendo un movimiento en defensa de la igualdad de género (querelle des femmes), en el que lamentablemente Kant no participa. En (...) el presente artículo, tras un preámbulo histórico en el que se confronta al Kant crítico con sus predecesores y coetáneos en lo tocante al tema de la igualdad de las mujeres, se defiende la tesis de que la verdadera moralidad no es pensable sin una idea de universalidad real o, lo que viene a ser lo mismo, de igualdad de género, porque solo a partir de ella es pensable la individualidad y la autonomía. Orthodox Kantian circles tend to excuse the philosopher's inconsistencies by saying that he was a "child of his time". It is true that in his time women throughout Europe were excluded from active citizenship, depriving them of the right to be political and, consequently, ethical and even historical subjects. But it is also true that in that same period a movement was emerging in defense of gender equality (querelle des femmes), in which Kant regrettably did not participate. After a historical introduction that contrasts the critical Kant with his predecessors and contemporaries regarding the issue of women's equality, the article goes on to defend the thesis that true morality is unthinkable without an idea of genuine universality, that is, without gender equality, since only on that basis can individuality and autonomy be thought. Nos círculos ortodoxos kantianos, as incoerências do mestre ao dizer que era um "filho de seu tempo" costumam ser desculpadas. Certamente, em sua época ainda se excluía em toda a Europa as mulheres da cidadania ativa e privava-as de serem sujeitos políticos e, com isso, sujeitos éticos, de direito, e inclusive, históricos. Mas também é verdade que, nesse momento, está emergindo um movimento em defesa da igualdade de gênero (querelle des femmes), do qual lamentavelmente Kant não participa. No presente artigo, após um preâmbulo histórico no qual se confronta o Kant crítico com seus predecessores e coetâneos no que tange ao tema da igualdade das mulheres, defende-se a tese de que a verdadeira moralidade não é pensável sem uma ideia de universidade real ou, o que vem a ser a mesma coisa, de igualdade de gênero, porque só a partir dela é pensável a individualidade e a autonomia. (shrink)
This study focuses on the application of multicriteria decision-making techniques, specifically the analytic hierarchy process (AHP), to identify corporate socialresponsibility information which both companies and stakeholders consider relevant and material. This work explains how the AHP methodology was applied in the selection of material indicators in corporate social responsibility reporting, the interpretation of these indicators and their relative importance. The results of this study are summarized in 60 indicators distributed in four areas: environment, economy, corporate governance and social. As this (...) last area contains the greatest number of indicators, it was divided into four sub-areas (human resources, human rights, product responsibility and society). (shrink)
Some arguments are presented in this paper where it can be stated that the truth that philosophy seeks is not the truth that matches with the verification interests of knowledge instrumentalization or pragmatism (Rorty) present in contemporary philosophy (Rorty). Aside from the unavoidable reality of human necessities and from the instruments that allow science and technology, as well as its own meaning (thanks to knowledge), which are necessary for human life, it is still a priority to explain a personal, “existential (...) truth” that requires a belief system conversion. This belief system conversion would be the philosophy’s starting point and not a “question about the oblivion of the being” (Heidegger), nor an ethic (Lévinas). (shrink)
Drawing on historical and contemporary evidence from Great Britain and Italy, this article examines actions that fall under official definitions of corruption and actions that are not illegal but are widely regarded as morally corrupt. As a social anthropologist, I argue that when dealing with the complexity of corruption and abuses of power, we need to identify what aspects of the system encourage or generate illicit practices and what aspects could instead generate real change. It is imperative to assess the (...) precise identity of the dividing line between the legitimate and the illegitimate and between the legal and the moral, and to address both the exact relationship of the protagonists in public life to formal law and its production and their perceived legitimacy in the broader society. Empirical evidence suggests that the production of the law must take into account the moralities which inform the definition of legitimacy at the grassroots, for legislation that enjoys such legitimacy is authoritative-therefore effective-legislation, and thus is governance that benefits from and abides by such legislation. (shrink)