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Neurolaw: When penitents become patients, then experiments


“Our understanding of the way the brain works could help us create a better legal system, says Baylor College of Medicine’sneuroscientist David Eagleman,” in “The human brain: turning our minds to the law” (Telegraph 05 Apr 2011): The problem, he says,

is that the law rests on two assumptions that are charitable, but demonstrably false. The first is that people are “practical reasoners”, which is the law’s way of saying that they are capable of acting in alignment with their best interests, and capable of rational foresight about their actions. The second is that all brains are created equal. Everyone who is of legal age and above an IQ of 70 is assumed, in the eyes of the law, to have the same capacity for decision-making, understanding, impulse control and reasoning. But these ideas simply don’t match up with the facts of neuroscience.

Isn’t equality in the eyes of the law somewhat like “We hold these truths to be self-evident … ”? where the equality claimed by the American founders was not based on assumptions about nature at all but on assumption’s about nature’s Author?


This article, based on Eagleman’s book Incognito, follows the usual pattern of tracts favouring materialist law reform: Asserting, with no evidence, that traditional beliefs about justice are merely a “desire for revenge.”


If the argument is that Crazy Jake is not as generously endowed with intellect as Richard Feynman, who doubts it? But – on the traditional assumption that Feynman’s intellect is a gift to him, and not proof of ultimate Darwinian superiority – they are indeed equal in the eyes of the law, though one is considerably better endowed in that way than the other. Rich and poor appear in the same court.

We also learn,

Along any axis that we measure, brains are different – whether in aggression, intelligence, empathy and so on. Brains are more like fingerprints: we all have them, but they are not exactly alike. As Lord Bingham, the senior law lord, put it, these myths embedded in the legal system do not provide a “uniformly accurate guide to human behaviour”.

Uniformly accurate guides to human nature are the norm in every other field, of course… And therefore,

The legal system needs an infusion of neuroscience. It needs to turn away from an ancient notion of how people should behave to understand better how they do behave.

With this result:

Currently, our patterns of punishment are founded on the concepts of personal volition and the attendant culpability. But a shift in our understanding of individual differences suggests a move toward prison sentences tailored to the risk of recidivism rather than the desire for revenge.

Ah yes, C.S. Lewis warned of this:
When punishment is banished from our list of concepts (because there is no free will anyway), penitents become patients, then, to judge from Eagleman’s language, mere experiments.

This article, based on Eagleman’s book Incognito, follows the usual pattern in tracts favouring materialist law reform: Asserting, with no evidence, that traditional beliefs about justice are merely a “desire for revenge.” Eagleman later asserts, again wholly without foundation, that today’s policy is “incarceration as a one-size-fits-all solution.” Has he really never heard of a “sentencing report,” where the judge considers all probable factors before deciding on a sentence?

Another typical strategy is to obfuscate the difference between remediable problems and fundamental ones: Overcrowded prisons are well within the reach of solution; a fundamental problem would be more like: the justice system relies on witches throwing bones to determine guilt.

Where I live, there are key problems with the justice system, one of which is that poor people go to prison to avoid fines and rich people pay fines to avoid prison; these problems could be fixed without scrapping the idea of justice. Indeed, they can only be fixed if we do not scrap the idea.

The comments are interesting:

At 1, “We’ve been here before back in the late 19th and early 20th Centuries. It’s called social Darwinism, and it took a “scientific” “genetic” view of criminal behavior and especially sought to remedy recidivism. So repeat offenders and the mentally feeble would get sterilized or locked up permanently no matter how minor their crimes. Changing the criminal legal system to adapt to how people DO act rather than how they SHOULD act produces far worse things than the goods it causes. I see no reason to believe why neuroscience-based criminal sentencing would be any more humane in principle or practice than the “genetic” criminal sentencing of the early 1900s.”

Indeed, with Eagleman’s approach, genetic criminal sentencing would be the new normal, once again.

More “neurolaw” stories:

FMRI flops in first criminal trial”

Brain scans and neurotrash

Confusing intent with motive is a threat to civil rights
Neuroscience: The young and the bureau

Neuroskepticism – a breath offresh air from New Humanist – and maybe more legal safety too?

Neurolaw: Could capital punishment kill it?

Neurolaw: Mind readers bustle into courtroom

Simulated study stirs debate

The new “Freudian psychology”, but this time with expensive gadgets?

Neurolaw: The brain as a cement cast

Neurolaw: Your “flawed” brain takes the rap

Neurolaw: The most sophisticated method of punishment ever.

Neuroscience and criminal justice: Voodoo, for example
Beware the moron neuron defense

Neurolaw: Stephanie West Allen on its potential dangers

Your brain is your best defense, literally


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