Law, Mind and Brain

Michael Freeman, Oliver R. Goodenough

• Publisher: Routledge
• Year: 2017
• eBook ISBN: 9781317107439
• Edition: 1
• Topic: Scienze sociali
• Subtopic: Teoria e pratica del diritto

Over the past 20 years, cognitive neuroscience has revolutionized our ability to understand the nature of human thought. Working with the understandings of traditional psychology, the new brain science is transforming many disciplines, from economics to literary theory. These developments are now affecting the law and there is an upsurge of interest in the potential of neuroscience to contribute to our understanding of criminal and civil law and our system of justice in general. The international and interdisciplinary chapters in this volume are written by experts in criminal behaviour, civil law and jurisprudence. They concentrate on the potential of neuroscience to increase our understanding of blame and responsibility in such areas as juveniles and the death penalty, evidence and procedure, neurological enhancement and treatment, property, end-of-life choices, contracting and the effects of words and pictures in law. This collection suggests that legal scholarship and practice will be increasingly enriched by an interdisciplinary study of law, mind and brain and is a valuable addition to the emerging field of neurolaw.

Chapter 1
Introduction

Michael Freeman and Oliver R. Goodenough

The human brain has been a focus of medico-legal debates since the late 1960s. It was then that efforts were made to formulate an alternative definition of death, one centred on brain function rather than heart-and-lung function.¹ It was the development of mechanical ventilation and the emergence of heart transplantation which necessitated this new definition of death. The focus is now rather on the brain in the living human, and it is this that this volume concentrates on.

We are seeing the emergence of ‘neurolaw’. In a sense this is only what we have wanted to be able to do since ancient times. As long ago as Hippocrates² scientists were searching for the source of our behaviour. With the Renaissance there emerged a new understanding of the brain. In the seventeenth century, the French philosopher Descartes wrote of the brain as a machine: he understood it as based on the principles of hydraulics. He accepted that even with a complete understanding of the brain we would still not completely understand behaviour.³

In the eighteenth and nineteenth centuries, the pseudo-sciences of physiognomy and phrenology developed. The former tends to be associated today with Lombroso, an Italian proto-criminologist who tried to explain criminal behaviour in biological terms.⁴ Phrenology began with the studies of Gall and Spurzheim: their work related brain functions (and character traits) to protuberances on the skull. It provoked considerable interest at the time.⁵ Like Lombroso, Gall studied criminals.⁶ Cranioscopy was to become standard within criminology. Carl Wernicke, the nineteenth-century German neurologist, was the first to advance the theory that there are ‘centres’ in the brain. Though not without his critics, Wernicke’s concept of localization is at the root of brain imaging techniques such as fMRI still today.⁷

The discovery of the X-ray in 1895 (by Roentgen) is a watershed event. For the first time it was possible to see into the body without undertaking surgery. The first arteriogram/angiogram in the brain was performed in 1927; the first recording of electrical brain activity (electroencephalography, or EEG) was made in Germany just after the end of the First World War.⁸ By the 1970s computers enabled us to make topograhic maps of brain electrical activity. Quantitative EEG (QEEG) became possible and we had brain maps comparing a patient with groups of patients.

Neuroimaging began with the discovery of computerized axial tomography by Hounsfield and Cormack in 1972 (they were awarded the Nobel Prize for this discovery in 1979).⁹ As Hounsfield explained in his Nobel lecture:

Computer tomography … measures the attenuation of x-ray beams passing through sections of the body from hundreds of different angles, and then, from the evidence of these measurements, a computer is able to reconstruct pictures of the body’s interior. Pictures are based on the separate examination of a series of contiguous cross sections, as though we looked at the body separated into a series of thin ‘slices’. By doing so, we virtually obtained total three-dimensional information about the body.¹⁰

Hounsfield’s initial focus was the detection of small tumours in the body, but he found he was able to perform a brain scan on a patient who had a frontal lobe brain tumour. Swiftly, technology enabled the development of CT scanning machines. Though initially criticized – there was concern about their cost – they have come to revolutionize neuroscience and, of course, medicine. It has also had an impact on law, and this will increase. Ten years ago Jennifer Kulynych noted:¹¹ ‘It is now common for a psychiatrist to refer to the physiological state of an individual’s brain when evaluating a mental disorder. Moreover, such evaluation increasingly includes a reference to neuroimages. In a legal proceeding, the visual impact of such neuroimages is hard to overstate.’ How much more so now! And this is not to underestimate its dangers: that it will, for example, license abuse of detainees in the war against terrorism.¹²

It is not surprising that the study of law has begun to draw insights from this gushing fountain of new knowledge. It was less than a decade ago that the combination of neuroscience with law first began to be mooted in academic circles at meetings¹³ and in writings.¹⁴ The Neuroethics Society was founded as recently as 2006. And now the field is bursting open. Some have rightly raised cautionary warnings that we should not get too carried away and lose our intellectual footing in the flood of discovery.¹⁵ But a flood it is becoming. A major piece of validation occurred in recent months when the MacArthur Foundation, a highly visible American philanthropy best known for its ‘genius awards’, announced a major programme of law and neuroscience research, focused primarily on questions of criminal law.¹⁶ UCL’s Law, Mind and Brain colloquium, and the papers in this volume, are examples of this growing ferment and important contributions to it.

The chapters that follow are a good reflection of the state of the field itself. The greatest concentration of attention is on criminal law and justice. Questions of criminal blame and responsibility are addressed in the work of Mobbs, Lau and Jones, Federle and Skendelas, Ross, Blumoff, and Claydon. Federle and Skendelas, and Ross focus on juveniles, in particular on the death penalty issue. It is a rich discussion and a topic where the potential of neuroscience to contribute to our understanding is particularly salient. But this is only the starting point. As both Feigenson and Boudreau remind us, bringing neuroscience into legal deliberations raises both questions of evidence and procedure, and provides tools for studying them. Neurological enhancement and treatment also pose problems for the law. These are analysed here by Dawson and Szmukler, and by Kolber. Stake, and Goodenough and Decker have contributed papers examining how people think about property. Mackenzie explores end-of-life choices; Du Laing contracting, and Spiesel the effect of words and pictures in law.

Taken individually, each of these is a significant contribution to its targeted field of study. Taken as a body, they make a clear statement that legal scholarship and practice will be increasingly enriched by an interdisciplinary study of law, mind and brain. We have come a long way since Hippocrates.

Notes

1 See Special Issue of Bioethics, vol. 4(3), 1990. See further J.L. Bernat, ‘The Biophilosophical Basis of Whole-Brain Death’ 19(2) Social Philosophy and Policy 324– 342 (2004).

2 See L.G. Panourias et al., ‘Hippocrates: A Pioneer in the Treatment of Head Injuries’ 57 Neurosurgery 181 (2005).

3 See R. Mazzolini, ‘Schemes and Models of the Thinking Machine’ in (ed.) P. Corsi, The Enchanted Loom: Chapters in the History of Neuroscience (1991).

4 See M. Gibson, Born to Crime: Cesare Lombroso and the Origins of Biological Criminology (Westport, CT: Praeger, 2002).

5 It is completely discredited by the findings of neuropsychology.

6 See C. Pogliano, ‘Between Form and Function: A New Science of Man’ in op cit. note 3, 144–203.

7 See G. Fernandez et al., ‘Intrasubject Reproductibility of Resurgical Language Lateralization and Mapping Using fMRI’ 60 Neurology 969 (2003).

8 By Hans Berger, a psychiatrist in Jena.

9 See R.L. Eisenberg, Radiology: An Illustrated History (1992), 467.

10 Ibid.

11 ‘Psychiatric Neurimaging Evidence: A High-Tech Crystal Ball?’ 29 Stanford Law Review 1249, 1251 (1997).

12 See J.H. Marks, ‘Interrogational Neuroimaging in Counterterrorism: A “No-Brainer” or a Human Rights Hazard?’ 33 American Journal of Law and Medicine 483–500 (2007).

13 See L.A. Frolik, Report: Seventh Annual Teaching Seminar: ‘Neurobiology, Human Behavior, and the Law’ Squaw Valley, CA June 17–21 (1998); K. Wermke and O. Goodenough Report: Workshop: ‘Law and Neuroscience’ Humboldt University, Berlin, February 19, 2001. Available at http://www.gruter.org/index.php?option=com_content&task=view&id=145&Itemid=88888947.
S. Taha and K. Nagel, Report: Workshop: ‘Neurological Basis for Justice’ University of California at San Francisco, CA. November 16, 2001. Available at http://www.gruter.org/index.php?option=com_coutent&task=view&id=154&Itemid=88888947.
S.E. Hyman, Neuroethics: At age 5, field continues to evolve. Available at http://www.dana.org/news/publications/detail.aspx?id=5850.

14 See O.R. Goodenough, ‘Mappping Cortical Areas Associated with Legal Reasoning and with Moral Intuition’ 41 Jurimetrics 429–442. (2001); B. Garland (ed.) Neuroscience and the Law, Brain, Mind and the Scales of Justice (Washington, D.C.: Dana Press) (2004); S. Zeki and O.R. Goodenough (eds) Theme Issue ‘Law and the Brain’ 359 Phil. Trans. R. Soc. Lond 1661–1890 (2004).

15 See S.J. Morse, ‘New Neuroscience, Old Problems: Legal Implications of Brain Science’ 6 Cerebrum 81–90 (2004).

16 See http://www.lawandneuroscienceproject.org/.

Chapter 2
Law, Responsibility, and the Brain¹

Dean Mobbs,^{2, 3} Hakwan C. Lau,^{3, 4} Owen D. Jones,⁵ and Christopher D. Frith³

Archaeological discoveries of traumatic injuries in primitive hominid skulls strongly hint that our species has a long history of violence.⁶ Despite repeated attempts throughout history, including efforts to eliminate violence through the imposition of criminal sanctions, we have yet to dispel our violent nature. Consequently, criminal violence remains a common feature of most societies. As policy-makers seek deeper understandings of criminally violent and antisocial behaviour, many contemporary neuroscientists assume that the essential ingredients of the human condition, including free will, empathy, and morality, are the calculable consequences of an immense assembly of neurons firing. I...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• List of Figures
• List of Tables
• List of Contributors
• Preface
• 1 Introduction
• 2 Law, Responsibility and the Brain
• 3 Brain Imaging and Courtroom Evidence: On the Admissibility and Persuasiveness of fMRI
• 4 Mind the Gap: Problems of Mind, Body and Brain in the Criminal Law
• 5 Self-Exclusion Agreements: Should We Be Free not to Be Free to Ruin Ourselves? Gambling, Self-Exclusion Agreements and the Brain
• 6 The Problems with Blaming
• 7 Why Distinguish “Mental” and “Physical” Illness in the Law of Involuntary Treatment?
• 8 A Stable Paradigm: Revisiting Capacity, Vulnerability and the Rights Claims of Adolescents after Roper v. Simmons
• 9 Thinking Like a Child: Legal Implications of Recent Developments in Brain Research for Juvenile Offenders
• 10 Legal Implications of Memory-Dampening
• 11 Reframing the Good Death: Enhancing Choice in Dying, Neuroscience, End-of-Life Research and the Potential of Psychedelics in Palliative Care
• 12 Equality in Exchange Revisited: From an Evolutionary (Genetic and Cultural) Point of View
• 13 Just (and Efficient?) Compensation for Governmental Expropriations
• 14 Examining the Biological Bases of Family Law: Lessons to be Learned for the Evolutionary Analysis of Law
• 15 Why Do Good People Steal Intellectual Property?
• 16 Cues in the Courtroom: When Do They Improve Jurors’ Decisions?
• 17 Reflections on Reading: Words and Pictures and Law
• Index