Neuroscience and the Law
Kenneth Taylor

04 September 2014

This week, our topic is neuroscience and the law. Neuroscience is revolutionizing our understanding of how the brain works. In the process it is challenging ago-old ways of thinking about crime and punishment. Some neuroscientists even say that it’s time to completely rethink our judicial system in light of their discoveries. That’s because our current legal system presupposes a certain picture of how the mind works that many neuroscientist now believe is almost entirely wrong. Common sense counts a person morally responsible for a wrongful action only if the action results from their free, conscious, deliberate choice. Pretty much the same idea is expressed in the law via the concept of a guilty mind ormens rea．根据法律，一项行为不能使你有罪，除非你的思想也有罪。

There are, of course, exceptions to this last claim, since, to be precise, the law distinguishes several different modes of culpability -- strict liability, negligence, recklessness… A wrong doer doesn’t have to make a free, conscious, deliberate choice to be culpable in these lesser ways. But the main point still stands. The law sharply differentiates between actions we freely, consciously, and deliberately choose and actions that we don’t so choose. It holds us most responsible and punishes us most severely for actions of the former sort.

Modern neuroscience purports to throw cold water on the idea that we freely choose our actions. And neuroscience teaches us that most of what the brain does to cause behavior happens without the benefit of conscious deliberation at all. Conscious deliberation is at best the small tip of a really huge iceberg. And the stories we tell ourselves about the causes of our behavior, according to some neuroscientists, are just after the fact confabulations, with no real basis in the neural facts of the matter.

但我必须承认，我不太确定这个故事是否像我刚才说的那么简单，或者说，在常识和法律之间，一方面，和神经科学的理论之间，真的存在着直接的冲突。这是因为法律真正需要区分的是，一方面，在完全意识到行为后果的情况下故意做某事，另一方面，做一些没有罪责的无知的事情，或者做一些因为你的神经回路失灵而做的事情。只要我们能够作出这样的区分，法律在自由、意识和刑事责任方面就具备了它所需要的一切。想想我——一个大脑相对完整的相对正常的人——和一个偏执的精神分裂症患者之间的区别。当然，神经科学并没有表明，就法律而言，我们都可能是偏执型精神分裂症患者。

The problem with this approach, though, is that neuroscience simply refuses to draw sharp lines. As far as neuroscience is concerned, it’s all on a continuum. Take a supposedly normal, law abiding citizen, upset their dopamine or serotonin balance just a teeny-tiny bit, or make a tiny little lesion in just the right place in their neural circuitry and presto-chango you’ve turned your upstanding law-abiding citizen into a viscous criminal.

这并不是说，所有的犯罪行为都是不良神经化学和神经回路的结果，因此是可以原谅的。可以肯定的是，人类所有的行为——每一点——都是我们神经化学和神经回路的结果。关键是，我们大脑中相对较小的差异可以对我们的行为产生巨大的影响。由于我们对我们的神经化学和神经回路没有太多直接的、有意识的控制，我们对我们行为的直接有意识控制比法律想象的要少。

Even so, it doesn’t directly follow that we should necessarily excuse criminal behavior. Think of we do we with other sorts of bad outcomes that are caused by chemical imbalances or bad wiring? We treat them with medication or therapy or surgery. One day soon we’ll be able to do the same when bad brain chemistry leads someone to perform criminal acts. And punishment need not be ruled out altogether either – though it probably needs a new basis. Typically with think of punishment is retribution. But if there is no such thing is freedom, if conscious, purposeful deliberation is just an epiphenomenon and not where our behavior is really and truly generated, then perhaps nobody really intrinsically deserves to be punishment.

But there is another possible basis for punishment – one that may be of more neurologically sound. Punishment provides negative feedback. And the brain sometimes changes itself in respond to negative feedback. Perhaps neuroscience can help us learn which forms of punishment provide effective feedback and which don’t.

Lest you think I’ve simply swallowed the neuroscience Kool-aid, I should say that there are still lots of questions we need to address before I’m willing to drink it down gladly. For example, I worry that everything I’ve been saying so far presupposes a philosophically problematic – I won’t say naïve -- concept of freedom – what philosophers sometimes callcontra-causal freedom．这是一种绝对的完全的自由，让我们的行为完全，完全由意志决定。我承认我们没有那种意义上的自由。也许神经科学可以帮助我们理解这一点。但我强烈怀疑，无论是常识还是我们的法律体系都以我们拥有那种意义上的自由为前提。如果我们不这样做，我们的刑事司法系统和神经科学告诉我们的大脑如何导致行为之间就不会有真正的冲突。是吗?


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Comments(60)

Guest's picture

Guest

Saturday, August 11, 2012 -- 5:00 PM

I think you overlooking the

I think you overlooking the elephant in the room. Prison is a highly profitable business that relies
on draconian sentences and unfair laws. Nonviolent drug offenders, for instance,
shouldnt be imprisoned as has been proven in more morally
负责任的国家，比如丹麦。康复根本不赚钱。It
naive at best to think that our justice system will listen to the truth of science or change
without considerable revolution.

Guest's picture

Guest

Saturday, August 11, 2012 -- 5:00 PM

I don't think "free will"

我不认为“自由意志”存在于脑化学之外。人们不想因为宗教或哲学的原因而放弃这个想法，因为他们想要相信他们能“控制”自己的生活。
Watch your behavior for a day. Identify those moments when you make, really make, a decision. Why did you make that particular decision vs. another? What guided your choice? You bought the cheap product rather than the expensive one. You can afford both. What in your life caused you to take the former path rather than the latter. What makes you prefer an iPad to a Nexus? Don't just list features. What makes one feature more attractive to you than another?
You are writing a paper on your computer. A second later you are looking at a web page totally disconnected from what you are doing. Why? When did you decide? One moment you are seated at your desk, the next moment you are straightening up books on the overcrowded sofa. Why? When did you decide?
You are attracted to redheads or blondes or tall men or voices. Why? When did you decide? Did you really choose to hate carrots but love tomatoes?
You love going to parties and bars. I don't. Why? You simply decided to be outgoing? I simply decided not to be?
我就是不理解那些知道，就像你节目里的那个例子，一个罪犯有脑瘤，却继续断言这个人有自由意志，完全控制自己的行为的人。(我记得奥普拉曾经采访过一位患有躁郁症的女性，这让人非常恼火。当然，奥普拉声称，这个女性要为她在狂躁期的行为负全部责任。荒谬的。)
Dangerous people need to be separated from society, whatever the reason ("evil", neurological disorder) for the destructive behavior. But we need to treat those who are sick. If we lack the technology today to treat certain disorders, like psychopathy, we should still provide humane methods of incarceration. And even if one can prove that some anti-social or criminal behavior is absolutely the result of free will, we still have an obligation as a civilized people to treat others humanely because when we are cruel to others we corrupt ourselves.
It is distressing that even your neurologist guest uses terms such as "don't let people off the hook". He is still assuming that people are, at bottom, "responsible" for their behavior. I simply do not understand the point. What does that term mean when applied to a man with a brain tumor, or that classic case of the railway man who had a spike driven through his head? It's like blaming Jim Brady for crying at the wrong thing after having been shot. Or blaming somebody for being paralyzed after receiving a bullet in the spine. Or imprisoning somebody with Alzheimer's for driving a car and killing somebody.

mirugai's picture

mirugai

Saturday, August 11, 2012 -- 5:00 PM

PUNISHMENT OF CRAZY MURDERERS

PUNISHMENT OF CRAZY MURDERERS
A few weeks ago, I was discussing the crazy murdering of some innocents who were in a movie, with a psychiatrist friend. When I called the killer ?crazy,? my friend said that actually he might not have been ?insane? or crazy, because he might have been acting logically based on some real perception he had, of circumstances or politics, or something. My friend wanted to make taxonomic distinctions because she understood (from her training and practice) that there are various and varying treatment modalities dependent on these distinctions.
我认为任何在电影院杀死或打伤一群人的人，不管他的动机是什么，都是疯狂的。因为这个词通常被使用。而那个问题不是什么品牌的?疯狂?the guy has ?
The only issue is what has your society decided to do with a person who murders a bunch of innocents, like this. The range of possible punishments is as broad as our imagination. From: putting needles in his eyeballs, slowly rolling a steamroller over his body from his feet to his face, tearing down the house he lived in, and confiscating all the assets of his family and friends; To: trying to understand his motivations, correcting them where they are wrong, fixing up his mental state, declaring him cured, and releasing him.
The only issue is what choice, in this spectrum, has whoever is in charge of a society?s rules decided upon. And the most interesting question about the choice, is: what do we learn about the society from the choice made.
The judicial system (judges, juries, prosecutors, at least) do a dance around ?diminished capacity? in order to get the punishment result they want to impose, without any real regard to laws.
Punishments have nothing to do with neural science, and everything to do with social science ? whoever has the power to impose punishment does it, trying to match punishment to their own social outrage. Prison sentences are ALL ridiculously long and inappropriate, and the longest are collective social insanity.
Philosophers should not waste their valuable time on neuroscience ? we have more than enough on our plate just thinking rationally about consciousness. All that happens when the scientists find ?neural centers of consciousness (NCC?s)? is that consciousness itself remains the same mystery it was before its ?origins? were ?discovered.? For example, the ?cost/benefit? analysis of criminal behavior has nothing to do with neural science, and neural science cannot help in understanding it.
The bridge between scientific cause and effect is drama.
The guest said ?? parts of our brain that we have no access to?? This is scientific dual-brain b.s.; the First Question (unanswerable) of philosophy is ?what or who is ?we???

Guest's picture

Guest

Saturday, August 11, 2012 -- 5:00 PM

I recently was dressed down

最近，我因为在另一个博客上发表的言论而受到严厉批评。看来像Jared Loughner, James Holmes等人已经引发了很多争议。确实如此。总之，我被狠狠地揍了一顿，因为我对刑事司法系统及其对“精神错乱辩护”的处理感到失望和无法容忍。我说，根本不应该考虑使用身份证，这意味着这是一个虚假的逃避——导致看似没完没了的“程序、分析和评估”，花费数百万美元，而被指控的犯罪者却要用纳税人的钱吃住。我不后悔。虽然我已经放弃了我在上面提到的博客上的参与，但关于杀人犯，我还是要说:KTAALGSTO。(或者:杀光他们，让上帝来解决。)这只是另一种反恐战争——因为这些暴徒是恐怖分子。
Now, I understand that this approach might cut into the profits of certain neuroscientists. Well. It is not much of a science anyway, IMHO. Never thought much of its mother, psychology, either.
A reforming liberal,
TAP.

Guest's picture

Guest

Sunday, August 12, 2012 -- 5:00 PM

Wrong is wrong no matter the

Wrong is wrong no matter the cause,
And right is simply right.
Be right,
Or just be,
=

mirugai's picture

mirugai

Tuesday, August 14, 2012 -- 5:00 PM

xiba t: Thank you for taking

谢谢你在这些问题上的立场，经过深思熟虑。在我看来，“无尽的思索”才是哲学的真谛。在哲学对话中，除了“我同意你”之外，唯一有价值的结论性立场是“那我们就同意各自保留不同意见”，我经常与我认识的一些最好的哲学头脑(比如园丁斯科特)达成这一立场。你引用的佛陀的话——很好——恐怕正好说明了我对神经科学应用的评论:神经科学没有任何东西能让我们洞察这句话的真相;只有哲学，及其无穷无尽的思辨，以及诗歌，才能将一个人的思想与邪恶联系起来。

Guest's picture

Guest

Wednesday, August 15, 2012 -- 5:00 PM

"It is a man's own mind, not

"It is a man's own mind, not his enemy or foe, that lures him to evil ways"
With due respect, All is truly One.
Be One too,
=

Guest's picture

Guest

Wednesday, August 15, 2012 -- 5:00 PM

A former acquaintance, who

A former acquaintance, who might have been a friend, once said that many problems of man could be resolved by talking them through. He has written several books, and is a respected neuroscientist in his own right. Thing is, we have been talking for several millenia. And, the more we talk, the less we agree upon. Others have written books about this, trying to explain on some level why it is we just cannot get along with one another. I have put my own label on it which will not appear here. With respect to MJH, oneness is relative---attainable, perhaps, but dependent upon will: with which we are in woefully short supply...
Go ahead, Michael, say a few "remover of difficulties" prayers, or Hare Krishnas, if those suit you. It is not working yet---near as I can tell. But, I could be missing something. Certainly. No doubt.

Guest's picture

Guest

Thursday, August 16, 2012 -- 5:00 PM

For no particular reason, a

For no particular reason, a poem I ran across several decades ago, now comes to mind. To the best of my recollection:
The first man, having split a hair,
wrote a thesis, then and there.
A second joined it up again,
and said he'd had an addl'd brain.
A third then wrote a book to say,
反正发型也不对。

Guest's picture

Guest

Thursday, August 16, 2012 -- 5:00 PM

Actions speak louder than

Actions speak louder than prayers Paul.
Rather than a prayer head down to the river and study nature, the solution of absolute certainty abounds there.
And try this experiment:
在不同的地方，把一根棍子扔进水流中无数次，然后告诉我你发现了什么，这根棍子和河水一样朝哪个方向流动?
Is the rivers' direction measurable? Is nature measurable? Are you, are we?
I found nature as is myself infinite there.
What will you find?
Your own Way,
The Way,
Freedom,
Equality,
Oneness,
or with any luck,
Just is
=

Guest's picture

Guest

Wednesday, September 5, 2012 -- 5:00 PM

Neuroscience and the law--

神经科学与法律——神经科学与法律——神经科学与法律.....我脑子里一直在想这件事，我在想优生学这门失败的"科学"我读过很多关于优生学的书，知道它是假的——从戈达德，到希特勒，还有很多。但是，恕我直言，总有一些界限——在某个地方——可以概括地说:适可而止。我对科学和法律的企图联姻感到非常厌倦;就像我厌倦了宗教和科学之间的所谓战争一样。古尔德会说什么?诺玛?非重叠magisteria吗?还没人明白吗?
Punish killers, or suffer the continuance of killing. If a murderer thinks he may get twenty to life, he will take the roll of the dice---maybe get out, and live to kill again. That is total nonsense. Does anyone get THIS yet?

Guest's picture

Guest

Saturday, October 6, 2012 -- 5:00 PM

这是一篇旧文章。Most of

这是一篇旧文章。该说的都说了。这样或那样。但是，在我看来，正如我们已经陈述或推断的那样，我们现在更喜欢理解和宽恕而不是惩罚;康复在报复。我们想要找出导致人们犯罪的弱点，这样我们能做什么?原谅那些犯罪行为?如果我为了自卫或保护朋友或亲人以外的任何理由去谋杀任何人，我将会“在法律的最大限度内”受到惩罚，无论惩罚是什么。不要为激情的高涨找蹩脚的借口;不幸的童年或其他虐待环境。事实是这样的:我们越是试图理解和原谅，我们就越深陷困惑。 Civilization, as we have known it, is rotting---largely because of our futile efforts to manipulate it and "make nice" with everyone. Well. That is not working out very well. Elementary, Doctor Watson.

mwsimon's picture

mwsimon

Tuesday, October 14, 2014 -- 5:00 PM

Another frightening way

Another frightening way neuroscience plays into the criminal justice system is with the idea of preventing crime before it happens. A friend and I were throwing around sci-fi what ifs recently, and we came upon the possibility of looking at people's brains, or genetic sequences, to determine who is inclined to kill. If the government was able to do this with accuracy, they might see it as in everyone's best interest if these people were locked up. Perhaps this would prevent a lot of murders. Worth it? Most of us will say no. Having the brain chemistry, without the guilt, doesnt incline us to put someone in jail

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