Law & Society Blog

In The Brain and the Law, Terrence Chorvat and Kevin McCabe provide a highly readably summary of how current research in cognitive neuroscience advances our understanding of the human decision-making process. For years, cognitive neuroscience has quietly supplied us with micro-foundations for legal, economic, and philosophical explanations of human action. Cognitive neuroscience itself is part of a broad transdisciplinary naturalistic movement that has spawned new fields of research as varied as second order cybernetics, general system theory, behavioral economics, neurolinguistics, and radical constructivism. The unifying theme of these diverse endeavors is the belief that in exploring human behavior (to put it in loosely Kantian terms), high-level theories without empirical micro-foundations are empty and empirical research without high-level theories are blind. Thus, a marriage between law and legal scholarship (high-level) and neuroscience (micro-foundation) is by no means capricious.
Among other things, Chorvat and McCabe report the results of an experiment designed to measure the brain activity of test subjects who were confronted with the classic moral dilemma of whether to sacrifice one life to save many. The subjects were asked to imagine a train coming down the track. If left on its course, it would kill five people. But if the test subject pressed a button, the train would move down a sidetrack and kill only one person. If presented in this manner, most people choose to push the button. The response is different if the setup is changed so as to require the test subject to push one person onto the track, where he or she would be killed so that the others may live. Even though the net result remains the same (one dead, five saved), the majority of test subjects refuses to actually dirty their hands. The first scenario activates regions of the brain that deal with calculation and execution. The second scenario activates those parts of the brain that are involved in social-emotional processing of fear and grief. While the result is hardly surprising, it is an important insight (or rather, a conjecture) that both sides of some of the persistent controversies in philosophy (for example, consequentialism versus deontology) are high-level expressions of specialized neurophysiological subroutines that have evolved in dealing with common human situations.
However, it is equally important to recall the limitations of such insights. The fact that we have specialized programs for social-emotional processing (”don’t push the person onto the track”) and for instrumental choices (”better one than five”) does in no way imply that either, both, or neither of these impulses are normatively valid responses to the hypothetical. The neurophysiological foundation merely helps to explain why certain controversies have been around forever. This is where Chorvat and McCabe venture too far into the dreaded Land of Ought. In discussing the results of the train hypothetical, they state that

¨ƒthe more impersonal the decision becomes, the more we can be “rationalƒ” or rather adopt socially optimal decision making mechanisms. (p.14).

More or less subtly, rationality has been identified with “socially optimal decision making,” which implies that whoever refused to push the poor guy onto the track failed to act optimally (and, presumably, should try to do better next time). The same naturalistic fallacy appears at the end of the article. Chorvat and McCabe state that

By understanding the neural mechanism, which we use to solve problems, we can hope to create laws and other rules which will help to foster socially optimal behavior. (p.32).

I agree to the extend that a deeper understanding of the neural mechanisms will enable us to design more effective legal tools to achieve our ends. But I disagree if the suggestion is that neurophysiology (or any other form of empirical inquiry) can give us insights as to which forms of social interaction are normatively better than others. With that caveat in mind, The Brain and the Law gets on my list of recommended readings.

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