|Which one do you want puzzling over the MRIs and setting precedents?|
Note: I ran across this old post, looking for something to add to a comment on another blog mocking Andy Schlafly's brain trust at Conservapedia. I post it because I came across a reference on yet another blog, from a researcher at another college who specializes in "psych-law". I think we'd all better think really hard about this trend in the law before it's effects are embedded.
Jeffrey Rosen's piece in the New York Times Magazine last Sunday is too good an example of what I’ve been warning about to pass up. Regular readers of this blog will know what I've been writing about the overstated claims made by increasing numbers of cognitive and behavioral scientists and concerns about people in authority who might act on those claims. Though Rosen introduces the use of it into arguments against the fixation on punishment by the legal system, that is incredibly naive. The assertion that people who are not legally insane behave as a result of their brain chemistry and physiology instead of free choice is more likely to lead to the conclusion of Peter Lorre’s gangster jury in the movie “M”, that people who can’t keep themselves from committing crimes should be exterminated. Who can look at the judicial system and political climate we have and not see that as the likely outcome?
Rosen begins badly with the assertion that “since all behavior is caused by our brains, wouldn’t this mean all behavior could potentially be excused”? The statement that all behavior is caused by our brains isn’t science, it’s philosophy. The attempts to find answers to questions of this kind go back at least to the dawn of the Samkhya school in India c. 200 CE. The impossibility of coming up with even the first answer, whether there is a self there in the first place, it’s doubtful the question can be answered. For similar reasons it’s doubtful that the more overblown claims of the researchers are on much higher ground. Those stem from assertions that what they can see is all that there is, that is also philosophy. Any conclusions as to what imaging and chemical analysis mean would be based on an analysis of data drawn from a number of individuals, it would start with that philosophical stand. The results would also be an interpretation of a statistical analysis of the group as a whole. What that evidence and the analysis means doesn’t reach the question of where the behavior of any individual starts. Even tested individuals could well be excluded from the analysis as outliers.
Rosen’s article goes into the work of “Owen Jones, a professor of law and biology at Vanderbilt. Jones (who happens to have been one of my law-school classmates*)” who is “turning Vanderbilt into a kind of Los Alamos for neurolaw. The university has just opened a $27 million neuroimaging center and has poached leading neuroscientists from around the world; soon, Jones hopes to enroll students in the nation’s first program in law and neuroscience.” “It”s breathlessly exciting,” he says. “This is the new frontier in law and science we’re peering into the black box to see how the brain is actually working, that hidden place in the dark quiet, where we have our private thoughts and private reactions and the law will inevitably have to decide how to deal with this new technology.”
With that amount of funding and the investment in professional and personal credibility and pride how much do you want to bet that they don’t come up with anything less than firm assertions? With the judicial system being what it is, you don’t have to guess that somewhere, some judge dazzled with their images and pedigree will accept them at their word and start building precedent and a legal framework that will become imbedded. It could be someone with ties to Vanderbuilt. Once it has been, that precedent will affect what our legal system does to people. And given the preference for the judicial system to “to substitute words for reality and then argue about the words,**" you can guess that the legal effect might well have a longer shelf life than the “science”.
How much of a reach is it to speculate once it becomes part of case law that it has an effect on legislation? With the number of lawyers in the Congress and state legislatures it’s a sure bet.
A good question to ask at the start is why this “science” is a sounder basis for law enforcement than an effort to generate better and more honest crime scene evidence. The physical aspects of evidence are certainly more easily analyzed than the product of cognitive science. Unlike the assertions of the science, most of those can be seen. Shouldn’t those who want to insert these speculations into the judicial system have to show results at least as good as real forensic science?
There are much better ways to argue against punishment as the method of dealing with those convicted of crimes than to go down this road. As pointed out in the beginning asserting that people don’t exercise free will is an invitation to disaster. It also endangers civil liberties and freedom. There is no getting around that, when the possibility of free will is denied the logical conclusion is that democracy is an illusion. We don’t need the speculations of self-interested scientists to tell us what has happens when that is assumed, we’ve got the horrible and bloody history of the 20th century to look at. That is all too real.
Punishment as law enforcement has a track record of failure and it’s expensive. Those two arguments are more likely to wash politically than “neurolaw”. I would also argue that punishment is not only useless but a fixation on it is no different from a desire for revenge. Revenge, far from being the virtue that it is presented as in entertainment, debases those who long for it and those who achieve it. That, however, isn’t an argument that will work in today’s political atmosphere which has been polluted by crime shows and sensational cabloid swill. That atmosphere is the one into which Jones and Rosen propose launching their new science. The results won’t be what they intend.
More generally, for our politics. Since the question of free will is impossible to answer, what should be done about it? I think that it should be assumed to exist because that assumption is useful in avoiding dictatorship and other awful things. It’s sort of like the complex number system using what are called the “imaginary numbers”. Those exist largely because they are useful. Their invention was based in utility and the theoretical framework expanded to include them. Politics and law are a lot more flexible than the exigent requirements of math. They can be informed by science but they don’t need to only rely on it. Holmes, who made unfortunate decisions based on unwise faith in biological determinism, said that the life of the law was based in experience, not logic. From his example, who can doubt that experience tempered by humility is probably a better guide when dealing with questions of free will.
* That fact alone should be a red flag. I’d feel a lot better about Rosen’s account of the lab if he had no connection to Jones. I think Rosen’s article is far too credulous about the science. It feels like there’s just too much awestruck wonder there.
** I’ve used this quote by Edwin Armstrong before.