A Test Case – Applying Neuroscience to Law

This is the 15th blog in the series which began with The Brainless Bible and the Mindless Illusion of Self and is exploring ideas about free will, the mind, the brain and the self. The previous blog is Implications of the Free Will Debate.   This blog series is based on the recent books of two scientists who are considering some claims from neuroscience about consciousness and free will:  Michael S. Gazzaniga’s  WHO’S IN CHARGE?:  FREE WILL AND THE SCIENCE OF THE BRAIN and Raymond Tallis’  APING MANKIND:NEUROMANIA, DARWINITIS AND THE MISREPRESENTATION OF HUMANITY.

Arguments about whether or not humans have free will are not abstract debates with no practical implications.  As Tallis makes perfectly clear those he labels as the ideologues of Darwinitis and neuromania are intent on reshaping all of human culture according to their philosophical presuppositions.  Tallis warns that we all should be paying attention to this debate and not allowing ourselves to be deceived by scientism which pretends to be science.  Gazzaniga is not so confrontational and rather wants us all to recognize that there are different realms of knowledge and that questions about free well, consciousness and self are after all philosophical debates and not scientific ones since they are dealing with immaterial concepts and science by definition is limited to the study of the material world.   We can look at one issue which Gazzaniga spends some time on: the legal implications of the free will debate.  Both Tallis and Gazzaniga see the neuroscientific technology of the fMRI being brought ever more frequently into the courts as evidence and neuroscientists being called upon to offer their expert opinions on behaviors and free will.  Since the modern Western  sense of justice requires that a person must be capable of making a choice before being found guilty of having committed a crime, the neuromaniac’s claims that there is no such thing as free will has absolute implications for justice of any kind.

Leaving aside the ideological claims of the neo-atheist’s faith in scientism, we can see wherein there are problems.  Gazzaniga outlines the judicial problem in the following way:

“Justice is a concept of moral rightness, but there has never been an agreement as to what moral rightness is based on: ethics (should the punishment fit the crime, retribution, or be for the greater good of the population, utilitarian?), reason (will punishment or treatment lead to a better outcome?), law (a system of rules that one agrees to live by in order to maintain a place in society), natural law (actions results in consequences), fairness (based on rights? based on equality or merit? based on the individual or society?), religion (based on which one?), or equity (allowing the court to use some discretion over sentencing)? Nonetheless, the judge tries to come up with a just disposition.”   (Gazzaniga, Kindle Loc. 3270-75)

First, Gazzaniga may overstate the problem – there was a fair amount of broad social agreement on dealing with issues of justice that governed Western civilization for some time.  It is the case that as modern Western society has moved away from a purely modernist view point and relied more on human reason than divine revelation that more diverse viewpoints have come to the forefront.  Multiple perspectives on any issue have become increasingly accepted in our totally individualistic and autonomous based thinking.  The seeds of the Enlightenment’s fight for the absolute rights of the individual have taken root.  Post-modernism and its rejection of any meta-narrative tying together individuals is a fruit of this evolution in thinking.   So under the influence of several very prominent current philosophical trends, agreements about morality and normality and what is acceptable have eroded.  This is the cause of the very partisan and divisive politics in our country.  Some would also say it is simply the nature of modern democracy.

The neuroscience contribution to the fray is that in courts more appeals are being made to fMRI technology to excuse or defend individuals based on the notion that they have “abnormal brains” and thus cannot be held personally accountable for their behavior.  Gazzaniga points out some of the problems with the courts uncritically accepting fMRI scans as scientific proof for excusing behavior:

“There are other problems with the abnormal brain story, but the biggest one is that the law makes a false assumption. It does not follow that a person with an abnormal brain scan has abnormal behavior, nor is a person with an abnormal brain automatically incapable of responsible behavior. Responsibility is not located in the brain. The brain has no area or network for responsibility. As I said before, the way to think about responsibility is that it is an interaction between people, a social contract. Responsibility reflects a rule that emerges out of one or more agents interacting in a social context, and the hope that we share is that each person will follow certain rules. An abnormal brain does not mean that the person cannot follow rules.”   (Gazzaniga, Kindle Loc. 3078-83)

Gazzaniga in the above statement comes closer to the position and concerns that Tallis raises.  Personality responsibility like consciousness and free will do not reside only at the level of individuals but are part of the shared social space in which all humans participate.  Gazzaniga points out:

“Diagnosed with schizophrenia after the fact by a psychiatrist for his defense, John Hinckley was found not guilty by reason of insanity for his attempt to assassinate President Reagan. This attempt, however, was premeditated. He had planned it in advance, showing evidence of good executive functioning. He understood that it was against the law and concealed his weapon.”  (Gazzaniga, Kindle Loc. 3092-94)

Wisdom, Justice, Vice & Crime, Corruption, Slander, Deception, Despotic Power

The push by some neo-atheists to deny the existence of free will in humans carries with it an extensive agenda to reform society  based on the ideology of scientism, which is a system of belief which denies many of the ideals, aspirations and hopes that have traditionally guided society.  It calls into question the purpose of legal consequences by denying that a person has the ability to make the choices they do.  Gazzaniga counters:

“No matter what their condition, however, most humans can follow rules. Criminals can follow the rules. They don’t commit their crimes in front of policemen. They are able to inhibit their intentions when the cop walks by. They have made a choice based on their experience. This is what makes us responsible agents, or not.”   (Gazzaniga, Kindle Loc. 3432-34)

Lady Freedom

Thus the push for changing how human society has dealt with social problems based in the belief system of scientism is an effort to deceive for it claims to be based in pure science while it based in the philosophical beliefs of materialism.  This is why Tallis warns strongly that we should be afraid of those who believe they can scientifically engineer human morality.  Scientism may be a child of the Enlightenment but it intends to gut the very nature of American idealism which is based in human freedom and personal responsibility.

Next: Do We have the Brains to Deal with Ourselves?

3 thoughts on “A Test Case – Applying Neuroscience to Law

  1. Pingback: Orthodox Collective

  2. Pingback: Implications of the Free Will Debate | Fr. Ted's Blog

  3. Pingback: Do We have the Brains to Deal with Ourselves? (I) | Fr. Ted's Blog

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