Abstract
In Minds, Brains, and Norms, Pardo and Patterson deny that the activities of persons (knowledge, rule-following, interpretation) can be understood exclusively in terms of the brain, and thus conclude that neuroscience is irrelevant to the law, and to the conceptual and philosophical questions that arise in legal contexts. On their view, such appeals to neuroscience are an exercise in nonsense. We agree that understanding persons requires more than understanding brains, but we deny their pessimistic conclusion. Whether neuroscience can be used to address legal issues is an empirical question. Recent work on locked-in syndrome, memory, and lying suggests that neuroscience has potential relevance to the law, and is far from nonsensical. Through discussion of neuroscientific methods and these recent results we show how an understanding of the subpersonal mechanisms that underlie person-level abilities could serve as a valuable and illuminating source of evidence in legal and social contexts. In so doing, we sketch the way forward for a no-nonsense approach to the intersection of law and neuroscience.
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Notes
Likewise, Bennett and Hacker write: “Neuroscience can investigate the neural conditions and concomitants of the acquisition, possession, and exercise of sentient powers by animals. It can discover the neural preconditions for the possibility of the exercise of distinctively human power of thought and reasoning, of articulate memory and imagination of emotion and volition…what it cannot do is replace the wide range of ordinary psychological explanations of human activities in terms of reasons, intentions, purposes, goals, values, rules and conventions by neurological explanations. And it cannot explain how an animal perceives or thinks by reference to the brain’s or some part of the brain’s perceiving or thinking” ([3], p. 3). See also [6] and [7].
It is well known that this epistemic conception of memory fails to distinguish cases of memory proper from cases of relearning, such as when a person relearns something that they had forgotten about their past by reading their biography or, perhaps more interestingly, their own diary. Martin and Deutscher [13] develop a causal theory of memory to honor this distinction (see [14]).
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Robins, S.K., Craver, C.F. No Nonsense Neuro-law. Neuroethics 4, 195–203 (2011). https://doi.org/10.1007/s12152-010-9085-1
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DOI: https://doi.org/10.1007/s12152-010-9085-1