Table Of ContentLaw and the Brain
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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
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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
