Avoiding Irrational Neurolaw Exuberance: a Plea for Neuromodesty - Stephen J. Morse

• Citation: Vol. 62 No. 3
• Publication year: 2011

Avoiding Irrational NeuroLaw Exuberance: A Plea for Neuromodesty

by Stephen J. Morse*

I. Introduction

In a 2002 editorial published in The Economist, the following warning was given: "Genetics may yet threaten privacy, kill autonomy, make society homogeneous and gut the concept of human nature. But neuroscience could do all of these things first."¹ The genome was fully sequenced in 2001, and there has not been one resulting major advance in therapeutic medicine since. Thus, even in its most natural applied domain-medicine-genetics has not had the far-reaching consequences that were envisioned.² The same has been true for various other sciences that were predicted to revolutionize the law, including behavioral psychology, sociology, psychodynamic psychology, and others. This will also be true ofneuroscience, which is simply the newest science on the block. Neuroscience is not going to do the terrible things The Economist fears, at least not for the foreseeable future. Neuroscience

* Ferdinand Wakeman Hubbell Professor of Law and Professor of Psychology and Law in Psychiatry, University of Pennsylvania. Diplomate, American Board of Professional Psychology (Forensic).

An earlier version of this Article was presented at a Symposium, "The Brain Sciences in the Courtroom," held on October 22, 2010, at the Mercer University, Walter F. George School of Law. I thank the organizers, Professor Ted Blumoff, and the members of the Mercer Law Review. Jakob Elster made especially helpful suggestions. As always, I thank my personal attorney, Jean Avnet Morse, for her sound, sober counsel and moral support.

1. The Ethics of Brain Science: Open Your Mind, Economist, May 23, 2002, at 77, available at http://www.economist.com/node/1143317/print.

2. See, e.g., Robert Koenig, Genome Scans: Impatient for the Payoff, 342 Science 448 (2009); Nicholas Wade, Genes Show Limited Value in Predicting Disease, N.Y. Times, Apr. 16, 2009, at A1.

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has many things to say but not nearly as much as people would hope, especially in relation to law. At most, in the near to intermediate term, neuroscience may make modest contributions to legal policy and case adjudication. Nonetheless, there has been irrational exuberance about the potential contribution of neuroscience, an issue I have addressed previously and referred to as "Brain Overclaim Syndrome."³

I first consider the law's motivation and the motivation of some advocates to turn to science to solve the very hard normative problems that law addresses. Part III discusses the law's psychology and its concepts of the person and responsibility. The next Part considers the general relation of neuroscience to law, which I characterize as the issue of "translation." Part V canvasses various distractions that have bedeviled clear thinking about the relation of scientific, causal accounts of behavior to responsibility. The following Part examines the limits of neurolaw and Part VII considers why neurolaw does not pose a genuinely radical challenge to the law's concepts of the person and responsibility. Part VIII makes a case for cautious optimism about the contribution neuroscience may make to law in the near and intermediate term. A brief conclusion follows.

II. Science and Law

Everyone understands that legal issues are normative, addressing how we should regulate our lives in a complex society. How do we live together? What are the duties we owe each other? For violation of those duties, when is the state justified in imposing the most afflictive-but sometimes justified-exercises of state power, criminal blame, and punishment?⁴ When should we do this, to whom, and how much?

Virtually every legal issue is contested-consider criminal responsibility, for example-and there is always room for debate about policy, doctrine, and adjudication. In a recent book, Professor Robin Feldman has argued that law lacks the courage forthrightly to address the difficult normative issues that it faces.⁵ The law therefore adopts what Feldman terms an "internalizing" and an "externalizing" strategy for using science to try to avoid the difficulties. In the internalizing strategy, the law adopts scientific criteria as legal criteria. A futuristic example might be using neural criteria for criminal responsibility. In

3. See Stephen J. Morse, Brain Overclaim Syndrome and Criminal Responsibility: A Diagnostic Note, 3 Ohio St. J. Crim. L. 397 (2006).

4. See, e.g., In re Winship, 397 U.S. 358, 364 (1970) (holding that criminal blame and punishment are such severe infringements that due process requires that conviction must be supported by proof beyond a reasonable doubt for every element of the crime).

5. See generally Robin Feldman, The Role of Science in Law (2009).

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the externalizing strategy, the law turns to scientific or clinical experts to make the decision. An example would be using forensic clinicians to decide whether a criminal defendant is competent to stand trial and then simply rubberstamping the clinicians' opinion. Neither strategy is successful because each avoids facing the hard questions and impedes legal evolution and progress. Professor Feldman concludes, and I agree, that the law does not err by using science too little, as is commonly claimed. Rather, it errs by using it too much because the law is too insecure about its resources and capacities to do justice.

A fascinating question is why so many enthusiasts seem to have extravagant expectations about the contribution of neuroscience to law, especially criminal law. Here is my speculation about the source. Many people intensely dislike the concept and practice of retributive justice, thinking that they are prescientific and harsh. Their hope is that the new neuroscience will convince the law at last that determinism is true, no offender is genuinely responsible, and the only logical conclusion is that the law should adopt a consequentially-based prediction/prevention system of social control guided by the knowledge of the neuroscientist-kings who will finally have supplanted the platonic philosopher-kings.⁶ On a more modest level, many advocates think that neuroscience may not revolutionize criminal justice, but neuroscience will demonstrate that many more offenders should be excused and do not deserve the harsh punishments imposed by the United States criminal justice system. Four decades ago, our criminal justice system would have been using psychodynamic psychology for the same purpose. More recently, genetics has been employed in a similar manner. The impulse, however, is clear: jettison desert, or at least mitigate judgments of desert. As will be shown in Parts V and VII, however, these advocates often adopt an untenable theory of mitigation or excuse that quickly collapses into the nihilistic conclusion that no one is really criminally responsible.

III. THE LAW'S PSYCHOLOGY, CONCEPT OF THE PERSON, AND RESPONSIBILITY

Criminal law presupposes a "folk-psychological" view ofthe person and behavior. This psychological theory explains behavior in part by mental states such as desires, beliefs, intentions, willings, and plans. Biological and other psychological and sociological variables also play a causal role, but folk psychology considers mental states fundamental to a full causal

6. See Joshua Greene & Jonathan Cohen, For the Law, Neuroscience Changes Nothing and Everything, in Law and The Brain 207, 217-18, 224 (Samir Zeki & Oliver Goodenough eds., 2006).

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explanation and understanding of human action. Lawyers, philosophers, and scientists argue about the definitions of mental states and theories of action, but that does not undermine the general claim that mental states are fundamental. Indeed, the arguments and evidence disputants use to convince others presuppose the folk-psychological view of the person. Brains do not convince each other; people do. Folk psychology presupposes only that human action will at least be rationalizable by mental state explanations or will be responsive to reasons-including incentives-under the right conditions.

For example, the folk-psychological explanation for why you are reading this Article is, roughly, that you desire to understand the relation of neuroscience to criminal responsibility or to law generally. You believe that reading the Article will help fulfill that desire so you formed the intention to read it. This is a practical, rather than a deductive, syllogism.

Brief reflection should indicate that the law's psychology must be a folk-psychological theory, a view of the person as a conscious-and potentially self-conscious-creature who forms and acts on intentions that are the product of the person's other mental states. We are the sort of creatures who can act for and respond to reason. The law treats persons generally as intentional creatures and not simply as mechanistic forces of nature.

Law is primarily action-guiding and could not guide people directly and indirectly unless people could use rules as premises in their reasoning about how they should behave. Otherwise, law as an action-guiding system of rules would be useless (and perhaps incoherent). Legal rules are action-guiding primarily because these rules provide an agent with good moral or prudential reasons for forbearance or action. Human behavior can be modified by means other than influencing deliberation, and human beings do not always deliberate before they act. Nonetheless, the law presupposes folk psychology even when we most habitually follow the legal rules. Unless people are capable of understanding and then using legal rules to guide their conduct, the law is powerless to affect human behavior.

The legal view of the person does not hold that people must always reason or consistently behave rationally according to some pre-ordained, normative notion ofrationality. Rather, the law's view is that people are capable of acting for reasons...