How NOT To Do Law, Philosophy, and Neuroscience

I’ve just returned from the Understanding Humans through Neuroscience conference at the American Enterprise Institute, where I heard papers by Roger Scruton, Walter Sinnott-Armstrong, and Stephen Morse. What struck me was how mired the three papers were in defending against a certain kind of agency-undermining determinism that few people take seriously any more. All of them were worried about the implications of this kind of case:

a 40-year-old man who inexplicably became a sexual impulsive with paedophilia. The patient had no prior history of sexual misconduct, but it was soon noted that he was frequenting prostitutes and that he attempted to molest his 12-year-old step-daughter. He was quickly reported to the local authorities, was found guilty of child molestation, and was sentenced to either attend a 12-step sexual addiction program or face jail. Despite a strong yearning not to go to prison, the patient could not inhibit his sexual impulses. It was soon discovered that the defendant had a large tumour pressing on his right orbitofrontal cortex (Figure 2). Upon the resection of the tumour, the patient’s sexual impulsiveness diminished. When the sexual impulsiveness later reappeared, a brain scan revealed that the tumour had grown back. A second resection of tumour again diminished the patient’s sexual impulsiveness [42].

This is basically an unrepeatable experiment in neuroanatomy, but for some reason folks in law really worry about it. The implication of brain tumors that make you a child molester is that potentially child molesters, who we desperately hate, are not responsible agents. If that’s true, then we worry that it would be wrong us to punish them as we want to do. The short response to this is that a tumor can create pathological desires but probably not pathological actions.  More to the point, if a particular child molester isn’t a moral agent, then it is not so much wrong for us to punish them as it is just pointless.

This is so antique an anxiety that I usually only describe these arguments in the stoner voice I use to make fun of sophomore philosophy majors: “Yeah man, like have you ever, like, looked at your hand?” “Dude, what if, you know, like, freedom? What if that’s an illusion?” Each of the papers focused on the problem of determinism, free will, and compatibilism while couching their arguments in terms of the danger that neuroscience allegedly poses to our understanding of agency. Sinnott-Armstrong and Morse gave clear, entertaining presentations, but the material was little more than what I cover in my introduction to philosophy classes. Professional philosophers have largely rejected the pressure of these arguments since Peter Strawson’s “Freedom and Resentment” introduced a compatibilism that depended on reactive attitudes like forgiveness and resentment rather than metaphysical claims about causation and freedom. Sinnott-Armstrong and Morse rejected them, too, so no surprises there.

Now, Sinnott-Armstrong not only has a pretty good Philosophy of Law textbook, he wrote one of my favorite essays on collective responsibility,”It’s Not My Fault: Global Warming and Individual Moral Obligations,” in which he argues against ineffective individual solutions to collective action problems. Since responsibility and agency is one of his chief concerns, I guess I shouldn’t have expected him to start looking at the neuroscience on bias, moral heuristics, framing effects, and group polarization, even though that’s where the interesting and cutting edge implications of neuroscience currently rest for law.

What really bothers me is the way that the discussion naturally supported a particular kind of account of personal responsibility that is itself highly partisan. I went to AEI expecting that the audience would be somewhat conservative, but not that we’d be re-litigating the culture wars. I guess in a sense, I got what I hoped for, insofar as I hoped for a discussion of this:

Once partisans had come to completely biased conclusions — essentially finding ways to ignore information that could not be rationally discounted — not only did circuits that mediate negative emotions like sadness and disgust turn off, but subjects got a blast of activation in circuits involved in reward — similar to what addicts receive when they get their fix, Westen explains.

“None of the circuits involved in conscious reasoning were particularly engaged,” says Westen. “Essentially, it appears as if partisans twirl the cognitive kaleidoscope until they get the conclusions they want, and then they get massively reinforced for it, with the elimination of negative emotional states and activation of positive ones.”

Instead of a discussion, however, I got a demonstration. The whole conference felt like an exercise in assurance: neuroscience would not be allowed to challenge anyone’s assumptions or undermine any of our prejudices. Tradition and common sense were defended. The appearances will be preserved. Let the kaleidescope twirl: the sun still revolves around us.


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