Michael S. Pardo and Dennis Patterson (University of Alabama School of Law and Rutgers University School of Law, Camden) have posted Philosophical Foundations of Law and Neuroscience on SSRN. Here is the abstract:
According to a wide variety of scholars, scientists, and policymakers, neuroscience promises to transform law. Many neurolegalists - those championing the power of neuroscience for law - proceed from problematic premises regarding the relationship of mind to brain. In this Article, we make the case that their accounts of the nature of mind are implausible and that their conclusions are overblown. Thus, their claims of the power of neuroscience for law cannot be sustained. We discuss a wide array of examples including lie detection, criminal-law doctrine, economic decision-making, moral decision-making, and jurisprudence.
And from the text:
If anything unites the various problems and projects of neurolegalists, it is the belief that the mind and the brain are one. This belief has spread far beyond neurolegalists, for it is a pervasive feature of much of the current literature and research in neuroscience as well as more popular writings.66 But does it make sense to attribute to the brain psychological attributes normally attributed to persons? Can we intelligibly say that the brain thinks, perceives, feels pain, and decides? If we cannot, what are the implications for neuroscience and law?
Our argument that neurolegalists commit the “mereological fallacy” begins with the conceptual-empirical distinction. As discussed earlier, two distinct sorts of questions permeate discussions of mental life. Empirical questions are the focus of scientific research, specifically research into the biology and physiology of brain function. By contrast, conceptual questions address how the relevant concepts are articulated. At all times, the point of the philosophical enterprise is to assess the degree to which articulations regarding the brain make sense. The mereological fallacy consists in attributing an ability or function to a part that is only properly attributable to the whole of which it is a part.67 In this case, “part” and “whole” are elements of human beings. But why is it an error – indeed a “conceptual” error – to ascribe a psychological attribute to a part of a human being? Consider, once again, “knowledge.” Does the claim that knowledge is located in the brain transgress the bounds of sense so that we can say that it “makes no sense” to say that “the brain stores information”? Can knowledge and information be stored in a brain just as it is stored in books or hard drives?
In their critique of the work of the work of philosopher Daniel Dennett, neuroscientist Maxwell Bennett and philosopher Peter Hacker argue that “[i]n the sense in which a human being possess information, the brain possess none.”68 Imagine the schedule for the New York Philharmonic is “encoded” in your brain. Can we say of you that you know when the next Mahler symphony is to be performed by the orchestra? If the question “when is the next Mahler symphony to be performed by the New York Philharmonic?” is put to you and you utter the wrong date, we would conclude – correctly – that you did not know the answer to the question. Knowing is not being in a particular state. Knowing is an ability—the ability, for example, to answer the question correctly. The measure of the truth of your answer is not found in the neural state of your brain. Whether or not you know the answer to the question is shown, among other ways, by what you sincerely say in response to the question.
The upshot of this and countless other examples is that psychological attributes are essentially manifested on the behavior, reactions and responses of the living human being in the stream of life, not in whatever concomitant neural activity of his brain is to be found. This is the key to the mereological fallacy and the undoing of the reductive impulses of neurolegalists. Behavior is something only a human being can engage in. Brain functions and activities are not behaviors (and persons are not their brains). Yes, it is necessary that one have a brain in order to engage in behavior.71 But the reduction of a psychological attribute to a cortical attribute is a fallacious move from whole to part.
Highly recommended. This is an important critique that will surely spark further debate. Download it while its hot!