A few weeks ago I posted some brief comments about an interesting new piece by Steven Erickson entitled "Blaming the Brain." Upon reading his article, I made the following remarks:
I am always a bit skeptical when the critics of neurolaw treat the nascent field as if it were a monolithic entity. Take, for instance, the 40+ fellows and post-docs who make up the Law and Neuroscience Project (LANP). Given the way critics often talk about "the" field of neurolaw, one would think the LANP would have attracted an ideologically homogeneous group of radicals and revolutionaries who are determined to transform the criminal law. In fact, however, LANP is composed of people from a variety of disciplines who have wide ranging views concerning the transformative potential (or lack thereof) of neuroscience. In practice, neurolaw is a field that includes both those who think neuroscience will radically alter the criminal law (e.g., Joshua Greene) and those who think neuroscience will have a much narrower effect on our notions of agency and responsibility (e.g., Stephen Morse). Moving forward, I think the heterogeneous nature of the growing field of neurolaw needs to be kept in mind by both critics and advocates alike.
I have subsequently frequently encountered what I take to be a similarly misplaced approach towards the nascent field of neurolaw. From the otherwise important and influential work of Michael Pardo and Dennis Patterson on neuroscience and the law to other critical reviews of neurolaw around the web (see here, here, here, here, and here), I find what appears to be a recurring instance of the fallacy of composition. In short, critics of neurolaw assume that because some people working in the field of neurolaw claim that current and future advancements in neuroscience are sowing the seeds of a moral and legal revolution, all people working in the field share this view. Unfortunately, this not only flies in the face of the actual debates that are presently unfolding within the field of neurolaw, but it also makes it far too easy for critics of the revolutionaries to dismiss the entire field as a whole. By my lights, this fallacious line of reasoning--much like the burning of straw men more generally--has shed more heat than light (to borrow a phrase from P.M.S. Hacker).
To correct for this mistaken assumption--namely, that neurolaw scholars are a monolithic entity with a unified approach, methodology, goals, etc.--it is imperative that we draw a distinction between what might helpfully be called the neurolegal skeptics, conservatives, and revolutionaries. The neurolegal skeptics assume that most (if not all) of neuroscience is largely irrelevant to the criminal law and will remain so long into the foreseeable future. On this view, to think that neuroscience shows, in and of itself, that "I am my brain" or that "free will and moral responsibility are impossible" is to make some sort of conceptual or theoretical blunder. In short, the skeptic thinks that as interesting and important as neuroscience may be when it comes to explaining how the brain works, moral and legal responsibility operate at the level of the person and not the brain. The neurolegal conservatives think that while neuroscience may be relevant in certain situations, the science is still too young to be used in the criminal law today. As such, conservatives think we should think very carefully about when and how neuroscience should be used for the purposes of the law. On this view, slow and steady wins the race when it comes to the proper relationship between law and neuroscience. Finally, neurolegal revolutionaries think that current and future neuroscience will undermine our traditional notions of moral and legal responsibility. On this view, as neuroscientists continue to uncover the cognitive underpinnings of human agency, our beliefs in free will, autonomy, moral desert, and retributivistic punishment will lose their grip on our intuitions and practices.
Of course, even these three distinctions are too coarse to do justice to the actual field of play when it comes to the wide-ranging on-going debates in neurolaw. After all, even if one is a skeptic or a conservative when it comes to the relationship between neuroscience and free will and responsibility, one might nevertheless think that neuroscience has an important legal role to play in other contexts--e.g., lie detection, pain detection, etc. As such, the point of the distinction between skeptics, conservatives, and revolutionaries isn't meant to be either exclusive or exhaustive. It is merely meant to illustrate the fact that critics of so-called "neurolaw" are usually only criticizing a sub-set of the people working in the field of neurolaw--namely, the revolutionaries. Ironically, the skeptical and/or conservative arguments usually marshalled forward against the revolutionaries under the misleadingly over-generalized banner of "neurolaw" actually make valuable contributions to the field of neurolaw itself--e.g., the aforementioned work by Erickson, Pardo, Patterson, and others.
At the end of the day, the moral of the story is that neurolaw is a field of inquiry that is populated by scholars from a wide range of disciplines who are interested in tracing the proper (and improper) contours of the ever-changing relationship between neuroscience and the law. It is not an agenda, a fixed set of beliefs, a consistent point of view, a revolutionary regime, or a unified front. It is a fragmented and growing investigation at the crossroads of neuroscience, philosophy, the social sciences, and the law. By my lights, until it is treated as such by those who seek to criticize particular researchers and views within the field, these criticisms will continue to misguidedly throw out the neurolegal baby with the revolutionary bathwater.