In this Essay, we consider the contribution of a startling new book, Law & Neuroscience (L&N), by Owen Jones, Jeffrey Schall, and Francis Shen. It is a law school course book (a genre not often the focus of a scholarly review essay) that supports fundamental inquiry into the relationship between emerging neuroscientific insights and doctrinal conceptions in the law. We believe that the book shifts the paradigm and so may profoundly affect the course of normative evaluation of law. In this Essay, we trace and evaluate the “argument” of the book and suggest ways in which its contribution to the normative analysis of law may impact students and legal scholars for years to come. We believe that L&N is that rare work that will, quite literally, change the way people think.
The book’s power rests, securely, on two premises: (1) legal doctrine derives mainly from our folk psychological intuitions (based on our inferences about others’ beliefs, desires, and intentions) concerning human agency and, in particular, our capacities for practical reason; and (2) progress in the sciences of the mind, including neuroscience, casts grave doubts on folk intuitions at the core of our understanding of human agency. It is folk psychology that gives way to an understanding informed by neuroscience, compelling revision of our notions of responsibility embodied in contracts, torts, and criminal law.
Part I describes the dynamic balance and pedagogical power that the format of L&N achieves. That dynamic and power is illustrated in the contrast between the neurological reductionism endorsed by Francis Crick and skepticism expressed by Stephen Morse concerning the relevance of neuroscience to legal doctrine. On Crick’s view, if our folk psychological intuitions come into conflict with known neurological facts, it is folk intuitions that must go. On Morse’s view, by contrast, there are, either in principle or merely in fact, no discoveries in neuroscience that threaten our folk view of ourselves. In their judicious selection of theoretical perspectives and case studies, the editors of L&N sustain the Crick-Morse dichotomy across a wide range of substantive legal issues.
We complete our analysis in Part II by taking a stand of our own—we show the very real challenges to law presented by the Crick-Morse dichotomy. With Crick and others, we argue that the former authority of our folk intuitions must be ceded to conflicting findings in science. In defense, we show that recent discoveries from cognitive neuroscience integrate with discoveries in affective neuroscience, and, from those premises, we defend two claims: (1) many human actions—those we intuitively judge to be evaluable in moral and legal terms—are, as a matter of fact, causally influenced by affective processes about which we cannot reason, precisely because those processes do not rise to conscious awareness; and (2) some information about our affective processes can rise to conscious awareness, but, even when that occurs, the actual causes of our actions are liable to misinterpretation. We conclude that, if either (1) or (2) is correct, assumptions at the core of our folk view of human agency cannot be sustained. The shift in paradigm is profound indeed.
2017 University of Illinois Journal of Law, Technology & Policy 141-176
Davies, Paul S. and Alces, Peter A., "Neuroscience Changes More Than You Can Think" (2017). Faculty Publications. 1845.