How does what we are learning about the brain through neuroscience
and evolutionary science influence how we ought to think about ethics?
Recent advances in functional neuroimaging have increased scientists’
understanding of how our brains process moral decisions. Some thinkers
suggest that moral decision making is fundamentally an intuitive or
emotional process, and that what we call “reason” is a post-decision
making method of justification for actions, not a “higher order”
process for making decisions. If so, the new science challenges the
principle of free will, the argument that reason is the foundation of
moral decision making, and the importance of understanding intentions
before judging responsibility for action. The potential implications
for most Western ethical traditions are enormous.

This two-day conference will bring together some of the world’s
leading neuroscientists, moral psychologists, ethicists, including:

Kenote speaker Michael Gazzaniga, professor of
psychology and the director for the SAGE Center for the Study of the
Mind, University of California Santa Barbara;

Patrick Haggard, Institute of Cognitive Neuroscience, University College London;

Ethicist Robert Kane '60, University Distinguished Teaching Professor, University of Texas at Austin;

Marc Hauser, Cognitive Evolution Laboratory, Harvard University;

Joshua Greene, Moral Cognition Lab, Harvard University;

Walter Sinnott-Armstrong, professor of
philosophy and Hardy Professor of Legal Studies, Dartmouth College, and
co-director of the The MacArthur Law and Neuroscience Project

Anne Harrington, professor and chair, History of Science, Harvard University

James Blair, chief of the Unit on Affective
Cognitive Neuroscience in the Mood and Anxiety Disorders
Program, National Institute of Mental Health

01/25/2010

Raymond Tallis has made it abundantly clear that he doesn't like the recent trend towards research at the cross-roads of neuroscience and the humanities. In a series of sensational editorials, he has derided what he uncharitably refers to as "neuro-trash" and "neuro-mythology." I, for one, think that his arguments tend to shed far more heat than light. Minimally, Tallis' frequently commits what I have called the fallacy of composition when it comes to the field of neurolaw. As such, I plan to post a few responses in the weeks ahead. In the meantime, I thought I would provide readers with links to some of the things he has written about the relationship between neuroscience and the humanities in the past few years.

In summary, such are the limitations of our understanding of the brain,
attempting to apply the findings of neuroscience to social policy would
be premature, even if this were not wrong in principle. But it is wrong
in principle. The fabric of the human world, of the public space that
is the arena of our lives, is woven out of explicit shared attention
that has been infinitely elaborated in a way that has little to do with
what goes on in the darkness of the individual skull, though you
require a brain in working order in order to be part of it. If you come
across a new discipline with the prefix “neuro” and it is not to do
with the nervous system itself, switch on your bullshit detector. If it
has society in its sights, reach for your gun. Bring on the
neurosceptics.

Meanwhile, the neuromitigation of blame has to be treated with suspicion
except in those instances where there is unambiguous evidence of grossly
abnormal brain function or abnormal mental function due to clearcut illness
that may have its origin in brain disease. Our knowledge of the relationship
between brain and consciousness, brain and self, and brain and agency is so
weak and so conceptually confused that the appeal to neuroscience in the law
courts, the police station or anywhere else is premature and usually
inappropriate. And, I would suggest, it will remain both premature and
inappropriate. Neurolaw is just another branch of neuromythology.

Our failure to explain consciousness in terms of neural activity inside
the brain inside the skull is not due to technical limitations which
can be overcome. It is due to the self-contradictory nature of the
task, of which the failure to explain "aboutness", the unity and
multiplicity of our awareness, the explicit presence of the past, the
initiation of actions, the construction of self are just symptoms. We
cannot explain "appearings" using an objective approach that has set
aside appearings as unreal and which seeks a reality in mass/energy
that neither appears in itself nor has the means to make other items
appear. The brain, seen as a physical object, no more has a world of
things appearing to it than does any other physical object.

(*) This piece is not specifically about neurolaw, but it is based on assumptions that inform Tallis' so-called neuro-skepticism.

It appears both Tallis' strategy and his rhetoric are catching on, as evidenced by this recent piece by Denyse O'Leary over at Mertcator.net:

I'd like to propose a radical idea. Why don't the neuroscientists and
progressive humanists stop hyperventilating and chill out for a while.
Let them reflect on the fact that a hundred years ago phrenology,
the "science" of analysing behaviour by putting a tape measure around a
skull, was all the rage. Until they can account for the difference
between the mind and the brain, their research might not be worth a
hill of beans. In fact, it might just be, in the words of Raymond
Tallis, neo-phrenology.

Abstract:Neurolaw - also known as law and neuroscience or
legal neuroscience - studies legal issues raised by recent
developments in neuroscience, including cognitive and social neuroscience. Some
proponents of neurolaw think that neuroscience will soon be used widely
throughout the legal system and that it is bound to produce profound changes in
both substantive and procedural law. In contrast, other leaders in neurolaw
employ a less sanguine tone, urging caution so as to prevent misuses and abuses
of neuroscience within courts, legislatures, prisons, and other parts of the
legal system. Regardless of perspective, neurolaw studies not only the
descriptive and predictive issues of how neuroscience is and will be used in
the legal system but also the normative issues of how neuroscience should and
should not be used within the legal system. There are several topical areas
where neuroscience potentially enters legal discourse, which we outline
below.[For a discussion of the paper, see here and here]

Henry
Greely, "Prediction, Litigation, Privacy, and Property: Some Possible
Legal and Social Implications of Advances in Neuroscience." [see here]

Abstract:Neuroscience is rapidly increasing our knowledge of the
functioning, and malfunctioning, of that intricate three-pound organ, the human
brain. When science expands our understanding of something so central to human
existence, advances in science will necessarily cause changes in both our
society and its laws. This paper seeks to forecast and explore the social and
legal changes that neuroscience might bring in four areas: prediction,
litigation, confidentiality and privacy, and patents. The implications in
prediction are similar to those anticipated from human genetics. The
consequences for litigation seem potentially substantial, particularly if
neurosciences leads to better methods to detect lying or bias or allows us to
improve memory retrieval or to check the authenticity of memories. Protecting
mental privacy, both from governmental and private intrusions, may also prove
to be an important challenge. The patent issues, by contrast, appear fairly
minor.

Over the past decades cognitive neuroscience has
achieved major results in better understanding the neural basis of human
behavior. Eco­nomics has been the first social science interested and able in
using some of these results for its own purposes, mainly because of the renewed
inter­est towards psychology fostered by behavioral economics researches. Even
with some delay, also law studies are now showing a growing in­terest towards
these researches. The essay first reviews the major facts of this process, then
supports new applications of cognitive neuros­cience researches to law,
together with the proposal of a new definition for such field of researches.
Finally, the essay focuses on possible improvements of legal drafting and of
the application of le­gislative and statutory provisions in the light of a
better knowledge of reactions to said provisions under a cognitive-behavioral
profile, also by means of practical experiments.

According to a widespread view, a
complete explanatory reduction of all aspects of the human mind to the
electro-chemical functioning of the brain is at hand and will certainly produce
vast and positive cultural, political and social consequences. However,
notwithstanding the astonishing advances generated by the neurosciences in
recent years for our understanding of the mechanisms and functions of the
brain, the application of these findings to the specific but crucial issue of
human agency can be considered a “pre-paradigmatic science” (in Thomas Kuhn’s
sense). This implies that the situation is, at the same time, intellectually
stimulating and methodologically confused. More specifically—because of the
lack of a solid, unitary and coherent methodological framework as to how to
connect neurophysiology and agency—it frequently happens that tentative
approaches, bold but very preliminary claims and even clearly flawed
interpretations of experimental data are taken for granted. In this article
some examples of such conceptual confusions and intellectual hubris will be
presented, which derive from the most recent literature at the intersection
between neurosciences, on the one hand, and philosophy, politics and social
sciences, on the other hand. It will also be argued that, in some of these
cases, hasty and over-ambitious conclusions may produce negative social and
political consequences. The general upshot will be that very much has still to
be clarified as to what and how neurosciences can tell us about human agency
and that, in the meantime, intellectual and methodological caution is to be
recommended.

Various authors debate the question of
whether neuroscience is relevant to criminal responsibility. However, a
plethora of different techniques and technologies, each with their own
abilities and drawbacks, lurks beneath the label “neuroscience”; and in
criminal law responsibility is not a single, unitary and generic concept, but
it is rather a syndrome of at least six different concepts. Consequently, there
are at least six different responsibility questions that the criminal law
asks—at least one for each responsibility concept—and, I will suggest, a
multitude of ways in which the techniques and technologies that comprise
neuroscience might help us to address those diverse questions. In a way, on my
account neuroscience is relevant to criminal responsibility in many ways, but I
hesitate to state my position like this because doing so obscures two points
which I would rather highlight: one, neither neuroscience nor criminal
responsibility are as unified as that; and two, the criminal law asks many different
responsibility questions and not just one generic question.

Recent
scientific findings about the developing teen brain have both captured public
attention and begun to percolate through legal theory and practice. Indeed,
many believe that developmental neuroscience contributed to the U.S. Supreme
Court’s elimination of the juvenile death penalty in Roper v. Simmons.
Post-Roper, scholars assert that the developmentally normal attributes of the
teen brain counsel differential treatment of young offenders, and advocates
increasingly make such arguments before the courts. The success of any theory,
though, depends in large part on implementation, and challenges that emerge
through implementation illuminate problematic aspects of the theory. This
Article tests the legal impact of developmental neuroscience by analyzing cases
in which juvenile defendants have attempted to put it into practice. It reveals
that most such efforts fail. Doctrinal factors hamstring most claims — for
example, that persons with immature brains are incapable of forming the
requisite mens rea for serious crimes. Limitations intrinsic to the science
itself — for example, individual variation — also hinder its relevance and
impact. These factors both explain why developmental neuroscience has had
minimal effects on juvenile justice in the courts and illustrate why it generally
should. Moreover, direct reliance on neuroscience as the metric for juvenile
justice policy may jeopardize equality and autonomy interests, and brain-based
arguments too frequently risk inaccuracy and overstatement. The cases also
strongly suggest that neuroscience does not materially shape legal
decision-makers’ beliefs and values about youthful offenders but instead will
be read through the lens of those beliefs and values.

Developmental neuroscience nonetheless can play a
small role in juvenile justice going forward. Legislatures and courts may
regard that science as one source among many upon which to draw when basing
policy choices on assumptions about juveniles as a group. To go further is
unwarranted and threatens to draw attention away from critical legal and
environmental factors — good schools, strong families, economic opportunities,
mental health care, humane sentencing regimes, and rehabilitative services —
that are both more important and subject to greater direct control.