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Law and the Brain This page intentionally left blank Law and the Brain Edited by S ZEKI AND O GOODENOUGH Originating from a Theme Issue first published in Philosophical Transactions of the Royal Society B:Biological Sciences 1 3 Great Clarendon Street,Oxford OX2 6DP Oxford University Press is a department ofthe University ofOxford. It furthers the University’s objective ofexcellence in research,scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trade mark ofOxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc.,New York © The Royal Society 2004 The moral rights ofthe authors have been asserted Database right Oxford University Press (maker) First published 2006 All rights reserved.No part ofthis publication may be reproduced, stored in a retrieval system,or transmitted,in any form or by any means, without the prior permission in writing ofOxford University Press, or as expressly permitted by law,or under terms agreed with the appropriate reprographics rights organization.Enquiries concerning reproduction outside the scope ofthe above should be sent to the Rights Department, Oxford University Press,at the address above You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer British Library Cataloguing in Publication Data Data available Library ofCongress Cataloging in Publication Data Law and the brain / edited by O.Goodenough and S.Zeki.—1st ed. p.cm. Includes bibliographical references and index. 1. Law—Psychological aspects. 2. Cognitive neuroscience. 3. Neurosciences—Social aspects. 4. Neurobehavioral disorders—Law and legislation. I. Goodenough,Oliver R. II. Zeki,Semir K346.L379 2006 340(cid:2).1(cid:2)9—dc22 2005023085 Typeset by Newgen Imaging Systems (P) Ltd.,Chennai,India Printed in Great Britain on acid-free paper by Biddles Ltd.,King’s Lynn,Norfolk ISBN 0–19–857011–2 (Pbk.) 978–0–19–857011–0 ISBN 0–19–857010–4 (Hbk.) 978–0–19–857010–3 1 3 5 7 9 10 8 6 4 2 Preface The legal process is often invoked to resolve scientific or economic problems such as may arise when a bridge collapses,or an aeroplane crashes,or a ship sinks;or when a mishap occurs on the operating table; or when patent protection is sought for an invention claimed to be novel;or when it is necessary to assess the effect of a commercial practice on competition in a market; or when a baby dies, for no apparent reason, in its cot; or when it is sought to identify a fingerprint on a murder weapon. Problems of this kind may be very difficult and very important. Much may turn on their accurate resolution. But they are not the kind of problem to which the articles in this special review are directed,which are ofa much more fundamental nature,concerned with the motivation of individual human beings to act in the way they do. Legal rules do not exist for their own sake.They exist because they are thought to be necessary or desirable to curb excesses of anti-social behaviour,to encourage responsible government,to protect individual freedom and autonomy,to promote beneficial forms of economic activity, to encourage socially desirable patterns of behaviour, and so on. All these purposes (and the list could of course be extended almost indefinitely) depend on collective judgements about human motivation,the factors that influence human beings to think,decide and act as they do. In the past, the law has tended to base its approach to such questions on a series of rather crude working assumptions: adults of competent mental capacity are free to choose whether they will act in one way or another;they are presumed to act rationally, and in what they conceive to be their own best interests;they are credited with such fore- sight of the consequences of their actions as reasonable people in their position could ordinarily be expected to have;they are generally taken to mean what they say. Whatever the merits or demerits of working assumptions such as these in the ordinary range of cases,it is evident that they do not provide a uniformly accurate guide to human behaviour.A decision may be guided by reason,but it may be guided by emotion,intu- ition or some other influence altogether. Why else does a claimant, having received an apology,disdain an offer of compensation? Why else do normal people confess to crimes they have not committed? Even if it is accepted that the will of all human beings is free, the choices open to some are, in practice, constrained in a way that those of others are not.It seems that foresight is somewhat randomly distributed among human beings,like oil in the crust of the Earth. As the articles in this themed issue cogently show,our endeavour to resolve problems of this kind are greatly assisted by what Goodenough & Prehn (2004) call ‘an approach that seeks to integrate into the study of human thought our rapidly emerging knowledge about the structure and functions of the brain and about the formal properties of agents and decision-making processes’. It is surely true, as O’Hara (2004) suggests, ‘that our brains are the product of evolutionary forces and that our brain structures influence our thought,feelings and actions’.If so,one must agree with Chorvat & McCabe (2004) that vi Preface ‘By studying precisely how these mechanisms function,as well as other decision making mechanisms operate,we can better understand the limits and proper scope of law’. The content of these articles must be of profound interest to any open-minded lawyer. For,as Goodenough (2004) puts it,‘the discoveries of cognitive neuroscience are rapidly expanding our understanding of the workings of the human brain’and Goodenough & Prehn (2004) ‘Law is,in its own way,an investigative science,a learned and academic dis- cipline which probes into the nature of human thought....The classic legal process of seeking to articulate the mental landscape on issues of right and wrong into word-based rules is a rigorous intellectual exercise,relentlessly tested back against reality in hundreds and thousands of in vivoexperiments:actual human disputes...’. As the same authors graphically suggest,one may advance explanations about the sci- ence of automobiles without ever opening up the bonnet of a car: ‘With the engine exposed,a much more complete explanation is possible’. August 2004 Tom Bingham House of Lords,London SW1A 0PW,UK References Chorvat, T. & McCabe, K. 2004 The brain and the law. Phil. Trans. R. Soc. B 359, 1727–1736. (doi:10.1098/rstb.2004.1545) Goodenough,O.R.2004 Responsibility and punishment:whose mind? A response.Phil.Trans.R. Soc.B359,1805–1809.(doi:10.1098/rstb.2004.1548) Goodenough,O.R.& Prehn,K.2004 A neuroscientific approach to normative judgment in law and justice.Phil.Trans.R.Soc.B359,1709–1726.(doi:10.1098/rstb.2004.1552) O’Hara,E.A.2004 How neuroscience might advance the law.Phil.Trans.R.Soc.B359,1677–1684. (doi:10.1098/rstb.2004.1541) Contents Preface v Lord Bingham List of Contributors ix Introduction xi Semir Zeki and Oliver R.Goodenough INTRODUCTORY ESSAYS 1. The neuroeconomic path of the law 3 Morris B.Hoffman 2. How neuroscience might advance the law 21 Erin Ann O’Hara LAW,BIOLOGY,AND THE BRAIN 3. Law and the sources of morality 37 Robert A.Hinde 4. Law,evolution and the brain:applications and open questions 57 Owen D.Jones 5. A neuroscientific approach to normative judgment in law and justice 77 Oliver R.Goodenough and Kristin Prehn NEUROECONOMICS AND THE LAW 6. The brain and the law 113 Terrence Chorvat and Kevin McCabe 7. Neuroeconomics 133 Paul J.Zak DECISION MAKING AND EVIDENCE 8. A cognitive neuroscience framework for understanding causal reasoning and the law 157 Jonathan A.Fugelsang and Kevin N.Dunbar TRUTHFULNESS 9. A cognitive neurobiological account of deception:evidence from functional neuroimaging 169 Sean A.Spence et al. PROPERTY IN BIOLOGY AND THE BRAIN 10. The property ‘instinct’ 185 Jeffrey Evans Stake viii Contents CRIMINAL RESPONSIBILITY AND PUNISHMENT 11. For the law,neuroscience changes nothing and everything 207 Joshua Greene and Jonathan Cohen 12. The frontal cortex and the criminal justice system 227 Robert M.Sapolsky 13. The emergence of consequential thought:evidence from neuroscience 245 Abigail A.Baird and Jonathan A.Fugelsang 14. Responsibility and punishment:whose mind? A response 259 Oliver R.Goodenough Index 267 This book was originally published as an issue of the Philosophical Transactions of the Royal Society B:Biological Sciences (Volume 359;Number 1451/November 29,2004) but has been materially changed and updated. List of Contributors Abigail A.BairdDepartment of Psychological and Brain Sciences,Dartmouth College, Hanover,NH 03755,USA ([email protected]) Lord Tom BinghamHouse of Lords,London,SW1A 0PW,UK Terrence ChorvatSchool of Law,George Mason University,3301 North Fairfax Drive, Arlington,VA 22201,USA ([email protected]) Jonathan Cohen Department of Psychology, Center for the Study of Brain, Mind, and Behavior,Princeton University,Princeton,NJ 08544,USA Kevin N.DunbarDepartment of Psychological and Brain Sciences,Dartmouth College, Hanover,NH 03755,USA Tom F.D. Farrow Department of Academic Clinical Psychiatry, Division of Genomic Medicine, University of Sheffield, The Longley Centre, Norwood Grange Drive, Sheffield,S5 7JT,UK Jonathan A. Fugelsang Department of Psychology, University of Waterloo, 200 University Avenue West,Waterloo,Ontario,N2L 3G1,Canada ([email protected]) Venkatasubramanian GanesanDepartment of Academic Clinical Psychiatry,Division of Genomic Medicine, University of Sheffield, The Longley Centre, Norwood Grange Drive,Sheffield,S5 7JT,UK Russell D. Green Department of Academic Clinical Psychiatry, Division of Genomic Medicine, University of Sheffield, The Longley Centre, Norwood Grange Drive, Sheffield,S5 7JT,UK Joshua Greene Department of Psychology, Center for the Study of Brain, Mind, and Behavior,Princeton University,Princeton,NJ 08544,USA ([email protected]) Oliver R.GoodenoughVermont Law School,Chelsea Street,South Royalton,VT 05091, USA ([email protected]) Robert A.HindeSt John’s College,University of Cambridge,St John’s Street,Cambridge CB2 1TP,UK ([email protected]) Hon. Morris B. Hoffman Second Judicial District (Denver), State of Colorado, 1437 Bannock Street, Courtroom 9, Denver, CO 80202, USA (morris.hoffman@judicial. state.co.us) Catherine J.HughesDepartment of Academic Clinical Psychiatry,Division of Genomic Medicine, University of Sheffield, The Longley Centre, Norwood Grange Drive, Sheffield,S5 7JT,UK
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