Saturday, November 8, 2014

Discussion on Neuroscience and the Law

The legal world has always been concerned with the way that society functions along a certain set of socially acceptable concepts, precepts, and rules that have been handed down over the generations and agreed upon by the majority (for the most part) of the public.  They have made the decisions on what to do with those individuals that do not follow the agreed upon moral code of conduct in society with the basic understanding that everyone has a certain level of moral understanding and culpability.  The advent in the recent years of the field of neuroscience is set to change some of the legal world’s views and preconceptions.  This essay will discuss ways that neuroscience both will and will not affect the legal world and what possible ramifications that might entail.  Moral culpability, common sense, causality, and legal cases will be looked at for support in showing that neuroscience does, in fact, affect the law.

Neuroscience is changing and upgrading the way that the brain is understood to work, and in the process, also re-examining the ways that crime and the appropriate punishments are viewed.  There are some of the neuroscientists that are calling for the current judicial system in place to be reworked and reconceptualised their discoveries in the neuroscience field taken into account.[1]  This is because of a few different factors, such as the current legal conception of how the mind works not being accurate, common sense not being as applicable as it once was, and the degree to which a person is able to be held morally culpable of wrongdoing by the socially upheld system of rules and laws.  These can be examined through the aspect of causality for further clarification on how they impact the legal system as it stands.

Many advancements have been made in regards to understanding how causality is judged by people in different circumstances.  Fugelsang and Dunbar review the contemporary psychological models of causal thinking as directly relevant to legal reasoning in their article from 2004.[2]  It further covers new techniques that have helped to uncover some of the underlying neural signatures of complex causal reasoning.  Based on the data covered, Fugelsang and Dunbar propose ideas for the effectiveness of causal reasoning, as it pertains to legal decision-making.  They go on to explain how the ability to infer causality is not only crucial for human reasoning in general, but also for the application of the law more specifically. 

The legal system, by its nature, asks lawyers, judges, and jurors to reason out and make a judgement on a person’s actions in relation to how they contributed or resulted in specific outcomes.  This reasoning must be done in an unbiased manner, and is reliant upon the evidence being presented in a like fashion, so that the judgment can be reached in regards to the culpability of the defendant as causally responsible for the outcome in question.[3]  This is important in that unbiased legal application is paramount for maintaining consistency among rulings across jurisdictions, and in the fact that a person’s ability to make judgments of this nature is inseparably connected to the ability to attribute causality from evidence.  Without unbiased material for evidence or question, then a person’s own beliefs and conceptions will cloud the issue.  

However, there are those in the field of neuroscience that believe that causation is not an excuse or reason for changing the way the legal system works.  One such proponent is Morse, who maintains that causation is not an excuse, but that lack of capacity (mental/moral) can be.[4]  This brings out another way of looking at the neuroscience field in relation to the law.  Rather than approaching the issue of neuroscience and the law from the angle that neuroscience will result in a change of the law because of new information that the legal system cannot handle, there is the approach, or belief, that the legal system CAN handle whatever neuroscience throws at it, and that the law will change through a transformative-type effect.[5]  This means that the current legal system is adaptable enough to be able flex and accommodate the new line of thinking that neuroscience will bring into it in relation to how people function and make decisions, but that it will naturally undergo a shift in the way that it handles criminals due to the new concepts and understanding in how the brain works.  This is also referred to as people’s moral intuition regarding free will and responsibility.  This is believed by Greene and Cohen to come about by an appreciation of older arguments relating to punishment through retribution versus a consequentialist approach in criminal law, via the new illustrations provided by cognitive neuroscience.[6] 

It is at this point that the old saying, ‘what was he thinking?’ begins to take on a new meaning or point of view.  According to the law, a person is successfully convicted by being shown to have engaged in the act in question as well as having mens rea, or a guilty mind.  This refers to the intention to commit a criminal act, but the term has a looser interpretation by which it refers to all mental states consistent with moral / legal blame.  I.e., a murder by someone who is insane meets the first requirement but not the second.[7]  Now, common sense would consider that a person is responsible for whatever action it is that they have taken that is contrary to the socially and morally accepted norms, provided that the action was a product of their own purposeful choice.  Mens rea separates the action and choice of making the action, meaning that a person will not be found guilty if their mind is unable to be found guilty as well.[8]  This view is going to change with neuroscience in that neuroscience has shown that most of what goes on inside the brain resulting in certain behaviours does so without any conscious deliberation.  As Greene and Cohen said, ‘Cognitive neuroscience, by identifying the specific mechanisms responsible for behaviour, will vividly illustrate what until now could only be appreciated through esoteric theorizing: that there is something fishy about our ordinary conceptions of human action and responsibility, and that, as a result, the legal principles we’ve devised to reflect these conceptions may be flawed.’[9] 

There is quite a lot of merit to the idea that neuroscience will be able to help rethink the legal system and make allowances for the different ways that people think, and for different levels of culpability through ignorance, however this idea is a two-edged sword.  The relationship between common sense and the law and the new ideas of neuroscience may not be as simple and clear cut as this one is right and the other one is wrong.  The law just needs to be able to show the difference between someone doing something on purpose whilst being fully aware of the action and the ramifications of it, and someone performing the same act out of ignorance, lack of understanding, or a diminished ability through some type of brain malfunction.[10]  Klaming and Koops found that research in the area of neuroscience of normative judgement and decision-making has demonstrated that legal judgements involve other brain areas as compared to moral judgements; namely areas associated with reflecting explicit rules.  Also, one of the most fundamental legal applications of neuroscience refers to the possibility of determining criminal or civil responsibility, i.e. the degree to which a person can be held legally accountable for their actions.[11]  This would have a profound effect on those who would use pleas that are dependent upon the solidity and reliability of their mental faculties functioning fully, such as the insanity plea.  The insanity plea requires that a person is shown as ‘lacking a general capacity for rationality’ or that they laboured under ‘a defect of reason, from disease of the mind’.  Thus, the new science can help figure out who was or was not rational at the scene of the crime, much as it has in the past, but new science will not justify any fundamental change in the law’s approach to responsibility unless it shows that people in general fail to meet the law’s very minimal requirements for rationality.  Neuroscience is especially unlikely to undermine our faith in general minimal rationality.[12] 

During the course PHI310 Philosophy and Cognative Science, there was an example case study given regarding extraneous neurological conditions causing actions rather than the person’s own decisions.  The example given was that of a school teacher who suddenly without prior indication develops an interest in child pornography and then makes advances on a daughter.  This person was sent to sex-offenders treatment, continued to proposition people inappropriately in court, and eventually wound up in the Emergency Room of a hospital with a bad headache and other neurological symptoms.  After some tests and scans were done, there was found a cyst on the brain that was causing pressure and needed to be removed.  Within a few weeks of the cyst being removed, all the paedophilia and altered sex-drive symptoms also disappeared.[13]  This is interesting and important because the person was guilty of the actions, and did take the actions, but through neuroscience it was found and determined that it was not the teachers fault, but the cysts.  With the evidence that was available sans the neuroscience input, this teacher would have been found guilty in a court of being a sex-offender and treated as such.  With the inclusion of the neuroscience information, however, the guilt is removed as mens rea would not apply, because there was a medical condition that affected the brain and caused the actions.

There are more examples of neuroscience being allowed into the legal system and having an effect on the decisions and outcomes as well.  In Roper v. Simmins (2005), neuroimaging evidence was presented to the US Supreme Court to show that regions of the brain responsible for decision making and impulse control are not as well developed in adolescents as in adults; this was presented in order to argue that adolescents are less morally culpable for the crimes they commit than adults.  Although not entirely based on neuroimaging evidence, the Supreme Court in that case banned the death penalty for minors under the age of 18.[14]  Another example can be found in the case of Brian Dugan.  Klaming and Koops refered to the legal case of Brian Dugan, who was charged with the murder of a 10-year-old girl.  The expert witness argued that Dugan suffered from a malfunctioning limbic system which caused him to be a psychopath, and this information was a mitigating factor in his sentencing phase.[15] 

These findings and precedents are important as far as the implications regarding neuroscience and the law are concerned due to legal reasoning.  The human brain seems to be specifically sensitive to the degree that evidence is consistent, as far as statistical information is concerned at least, with the expectations of the people involved.  Fugelsang and Dunbar found that people do not evaluate evidence in an atheoretical manner, but rather they use their beliefs and expectations to guide their assessment of the evidence given to them.  This interplay between one’s beliefs and evidence has a distinct neural signature, in that evidence that is consistent with one’s beliefs is more likely to recruit neural tissue involved in learning and memory, whereas evidence that is inconsistent with one’s beliefs is more likely to invoke neural tissue associated with error detection and conflict monitoring.[16]

The reason that the law is immune to such threats as that there is nothing on the neuroscientific horizon that it can’t handle, is that it makes no assumptions that neuroscience or any other science, is likely to challenge.  The law assumes that people have a general capacity for rational choice, but also acknowledges that our capacity for rational choice is far from perfect, requiring only that the people it deems legally responsible have a general capacity for rational behaviour.[17]  The question arises then, why, if the law assumes nothing more than general minimal rationality, and neuroscience does nothing to undermine this assumption, then why would anyone even think that neuroscience poses some sort of threat to legal doctrines of criminal responsibility?  This is the error that is referred to as ‘the fundamental psycholegal error’ which is ‘to believe that causation, especially abnormal causation, is per se an excusing condition’.  In other words, according to Greene and Cohen, if you think that neuroscientific information about the causes of human action can make for legitimate legal excuse, you don’t understand the law.[18] 

How can Greene and Cohen, who are proponents of and arguing that neuroscience will change the law say that?  It is because they agree that the law as written is not affected by neuroscience.  They maintain, however, that the law stands on shaky ground because it depends on adequately reflecting the moral intuitions and commitments of society.  If neuroscience can change those intuitions, then neuroscience can change the law.[19]  In fact, it would appear that this new science may prove to be most useful legally in showing how certain people make their moral judgements and decisions, as moral behaviour impairment has been consistently linked to antisocial behaviour.[20]  Thus this is the manner that neuroscience is most likely going to effect the law; by subtly changing the moral intuition of the people and those that enact and interpret the law rather than by outright confronting it. 

Moral culpability, common sense, causality, and legal cases that have been referred to and looked at throughout this essay have shown that the field of cognitive neuroscience does, in fact, affect the law in many ways.  It is through the understanding of what is considered ‘right’ and ‘wrong’, ‘just’ and ‘unjust’, and acceptable to society as a whole that legal decisions are made.  Will the entire judicial system that is currently in place have to be thrown out the window and started over because of neuroscience?  No.  Will the way that criminals are prosecuted and punished need to be changed?  To some degree, yes.  As there is more and more information about what the cause of unwanted actions are, be it the decision of the criminal in question or a malfunction of sorts in the brain, there will naturally come an adjustment in the way that the legal system works, functions, and regards the people that it serves.  At the end of the day, neuroscience and the law deal with morality as defined by society, and “morality… is so ubiquitous that we may not notice it as a fundamental component of daily decision making and in the workings of many legal, political, and social systems.”[21]


Fungelsang, J. and Dunbar, K.  (2004).  ‘A cognitive neuroscience framework for understanding causal reasoning and the law’.  Philosophical Transactions of The Royal Society of London, Biological Sciences.  V. 359 (1451), pp. 1749 – 1754.  DOI:  10.1098/rstb.2004.1550

Greene, J. and Cohen, J.  (2004).  ‘For the Law, Neuroscience Changes Nothing and Everything’.  Department of Psychology, Princeton University, in press at Philosophical Transactions of The Royal Society of London, Biological Sciences. 

Klaming, L. and Koops, E.  (2012).  ‘Neuroscientific evidence and criminal responsibility in the Netherlands’.  International neurolaw: A comparative analysis.  Pp. 227 – 256

Knabb, J., Welsh, R., Ziebell, J., & Reimer, K.  (2009).  ‘Neuroscience, Moral Reasoning, and the Law’.  Published online in, Wiley InterScience (  DOI:  10.1002/bsl.854

Perry, J. and Taylor, K.  (2012).  ‘Neuroscience and the Law’.  Philoso?hy Talk.  Stanford University Philosophy Podcast and Blog.  - accessed 20 Aug, 2012. 

Vincent, N.  (2012).  ‘Neurolaw Part 1’, PHI310, Philosophy and Cognitive Science, Macquarie University, Open University Australia

Vincent, N.  (2012).  ‘Neurolaw Part 2’, PHI310, Philosophy and Cognitive Science, Macquarie University, Open University Australia

[1] Perry & Taylor, ‘Neuroscience and the Law’, 
[2] Fungelsang, & Dunbar. ‘A cognitive neuroscience framework for understanding causal reasoning and the law’,  p. 1749
[3] Ibid
[4] Vincent, ‘Neurolaw Part 2’, Lecture Notes
[5]Greene & Cohen, ‘For the Law, Neuroscience Changes Nothing and Everything’, p. 3
[6] Ibid
[7] Ibid, pg 4
[8] Perry & Taylor, ‘Neuroscience and the Law’,  
[9] Greene & Cohen, ‘For the Law, Neuroscience Changes Nothing and Everything’, p. 5
[10] Perry & Taylor, ‘Neuroscience and the Law’,
[11] Klaming, & Koops, ‘Neuroscientific evidence and criminal responsibility in the Netherlands’, p. 2
[12] Greene & Cohen, ‘For the Law, Neuroscience Changes Nothing and Everything’, p. 16
[13] Vincent, ‘Neurolaw Part 1’, Lecture Notes
[14] Knabb, Welsh, Ziebell, & Reimer, K, ‘Neuroscience, Moral Reasoning, and the Law’, p. 223
[15] Klaming, & Koops, ‘Neuroscientific evidence and criminal responsibility in the Netherlands’, p. 2
[16] Fungelsang, & Dunbar. ‘A cognitive neuroscience framework for understanding causal reasoning and the law’,  p. 1752
[17] Greene & Cohen, ‘For the Law, Neuroscience Changes Nothing and Everything’, p. 15
[18] Ibid,  pg 17
[19] Ibid, pg 18
[20] Knabb, Welsh, Ziebell, & Reimer, K, ‘Neuroscience, Moral Reasoning, and the Law’, p. 225
[21] Ibid, pg 219

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