My thanks to Eugene for inviting me to guest blog about law and neuroscience, sometimes referred to as "neurolaw." The neurolaw literature is typically addressed to one of two very different sets of issues. The first set is about responsibility. In particular, scholars ask whether we can justifiably hold people responsible for actions that are caused by activities in their brain for which they are not themselves responsible.
Consider the subject of this medical case study, who had no prior history of unusual sexual behavior. At around age 40, he began to demonstrate pedophilic behaviors (e.g., he made sexual advances toward his prepubescent stepdaughter). The man was found guilty of child molestation and given the opportunity to successfully complete a sexual addiction treatment program in lieu of going to jail. Unfortunately, he made sexual advances toward others in the treatment program and was forced to leave the program. Prior to being sent to jail, he complained of severe headaches and was taken to the hospital. Doctors soon discovered that he had a brain tumor in his orbitofrontal cortex. After the tumor was surgically removed, his sexual behavior returned to normal. You have to read the full case study for all the details. The bottom line, though, is that the study authors think it quite likely that the tumor played a causal role in the subject’s inappropriate behavior.
Many of my students have the intuition that the man should not be deemed criminally responsible for his sexual activities while he had the tumor. He is certainly not responsible for having the tumor, and it seems like the crime would not have happened but for the tumor. In most jurisdictions, however, I think the subject would be unlikely to mount a successful insanity defense.
If these issues about responsibility sound familiar, it’s because they are. This side of neurolaw often rehashes ancient questions about free will and agency (often without recognizing the questions as such). I do think that neuroscience offers a new perspective from which to explore these issues, and it goes something like this: As an empirical matter, our willingness to attribute responsibility to an actor (like the guy described above) tends to weaken when the person's actions seem to be caused by factors external to the actor. The more that we understand the causal mechanisms of human behavior, many of which will eventually be understood in neuroscientific terms, the less we tend to attribute responsibility to human agency. So, even if we’ve known for a very long time that our behavior is caused by events and circumstances beyond our control, somehow being made better aware of those causes seems to diminish, again as an empirical matter, our attributions of agency to particular human beings. These are not philosophical claims; they’re claims about human psychology. Nevertheless, interesting questions arise about what, if anything, follows from these psychological claims, assuming that they’re accurate.
My own work has principally focused on the second set of issues in neurolaw – namely, issues related to the legal and ethical implications of new neuroscience technologies. In this regard, I plan to blog about: (1) emerging pharmaceuticals to dampen traumatic memories, (2) the use of brain imaging to assess subjective experiences like pain, (3) the importance of subjective experience (esp. suffering) to our theories of punishment, and if time permits (4) the placebo phenomenon and whether we can use deception to obtain it.
My Neuroethics & Law Blog celebrates its three-year anniversary this month. Just over three years ago, I had a conversation with Orin Kerr in Old Town, San Diego about starting a new blog on neuroethics. Orin encouraged me to plunge in, and I’m pleased to thank him on his home turf for doing so.