In what has got to be one of the best titles of an editorial in years, “The Human Brain: Turning Our Minds To The Law,” David Eagleman takes up the Social Animal gauntlet in the Telegraph, and runs with it, legislatively-speaking. The connections are fairly self-evident in terms of free will, but in this case, so are the disconnections. That is, we see clearly where the traditional Christian teaching on the issue rubs up against modern jurisprudence. Specifically, can we be culpable for something that we do not have control over? Or put another way, can we be forgiven for something we can’t help? This blogger sure hopes so:
The first lesson we learn from studying our own circuitry is shocking: most of what we do and think and feel is not under our conscious control. The vast jungles of neurons operate their own programs. The conscious you – the I that flickers to life when you wake up in the morning – is the smallest bit of what’s transpiring in your brain. Although we are dependent on the functioning of the brain for our inner lives, it runs its own show. Your consciousness is like a tiny stowaway on a transatlantic steamship, taking credit for the journey without acknowledging the massive engineering underfoot.
At first blush, this viewpoint sounds absurd to many people. I know this because I ask strangers their opinion about it when I sit next to them on aeroplanes. And they usually say something like “Look, all that stuff – how I came to love my wife, why I chose my job, and all the rest – that has nothing to do with my brain. It’s just who I am.” And they’re right to think that the connection between one’s essence as a person and a sea of cells seems distant at best. Our decisions come from our minds, not from electrical bolts and chemical surges. Right?
The problem 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.
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”.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.
A natural concern is that a deeper understanding of the brain will equate to exculpation. If free will isn’t what we imagined it to be, but instead depends on your genetics, environment and neural circuits, shouldn’t everyone be let off the hook? But these concerns are misplaced. We will continue to take violators of social norms off the streets; we will still assign values right and wrong to behaviours. Instead, the change will be in the refinement of our sentencing.
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… Some people will say that bringing science into sentencing removes its humanity. But as it stands now, research shows that ugly people get longer sentences than beautiful people, and psychiatrists and parole boards, when tested, have no predictive power in guessing who will reoffend.
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