Andrew Scull Takes the Law (and the Brain) Into His Own Hands

Paul mentioned this intriguing review, Mind, Brain, Law and Culture, at the end of his post on Norman Doidge. Welcome back from the field, Paul!

Written by Andrew Scull, a sociologist at UC San Diego and an expert in the history of psychiatry, this review appeared in the journal Brain in 2007. In it, Scull took on the books Law and the Brain, edited by Semir Zeki and Oliver Goodenough, and Brain and Culture by Bruce Wexler. I’ll deal as briefly with Brain and Culture as Scull does, before getting to the meat of Scull’s critique.

Scull reviews Wexler’s book favorably, as did Greg back in February, praising it for an integrative approach: “Rather than positing a rigid separation between the biological and the social, Wexler insists that the two interact and mutually influence each other in powerful ways. It makes no sense, in his view, to regard the brain as an asocial or a presocial organ, because in important respects, its very structure and functioning is a product of the social environment.”

Like Greg, Scull likes the first two-thirds of the book, but is less sanguine about the last third, where Wexler moves away from plasticity to speaking of difference. These chapters are more speculative and vulnerable to criticism, evoking generalizations based on selective snippets of anthropological and historical evidence.

The greater rigidity of adult brains leads, [Wexler] suggests, to such phenomena as a ‘neurobiological antagonism to difference’ (p. 212), a resistance to novelty and change, a state of misery and illness in the face of altered worlds, even a propensity ‘to eliminate strange and foreign people’ (p. 212)…

[For this] biologically rooted conservatism and ethnocentrism, [t]o be sure, Wexler acknowledges ‘data to support [these] assertion[s] are not as clear-cut as the data … that support the arguments for environmental shaping of brain development’ (p. 212). But it does not stop him speculating along these lines, ignoring all the counter-examples that history and our own daily experience can just as easily offer: of adults embracing and seeking out novelty; of cultures comfortably co-existing; of delight in difference. The fact that even someone with generally so subtle a perspective on the interactions between brain and culture feels impelled to advance simplistic notions of this sort is a pity. It would seem that the siren song of biological reductionism is not easily resisted, even by those who ordinarily know better.

The evolutionary psychologists and hard-wired neuroscientists certainly claim to know better. As a Brit, Scull puts irony to use as he sings the praises of HARD science, of evolutionary psychobiology and cognitive neuroscience, as providing an objective basis for the law. After all, “subjective states have direct neural correlates,” so now the law has a scientific way to determine guilt. Such is the underlying premise of Law and the Brain, edited by a neuroscientist and a lawyer.

The wiser among us… understand that we are only animals, and as such are ruled by our biology, just as ineluctably as the ant or the rhesus monkey, and that if we want to understand human action in general, or more specialized realms like the human institution of the law, it is to our biology that we must turn. More specifically, it is mostly our brains that matter, and therefore it is to the elucidation and illumination provided by evolutionary psychobiology and contemporary neuroscience that we need to look for answers. Science, HARD science, will uncover the secret wellsprings of all our actions, and we can then leave behind once and for all the soft speculations of the social sciences and gratefully set aside the empty verbiage of the philosophers. Or perhaps, if we are a bit more charitable and ecumenical, we can incorporate some bits of the harder social sciences, such as economics, game theory and cognitive psychology, while abandoning the fuzzy notions foisted on us by soft-hearted and soft-headed anthropologists, sociologists and historians…

All aspects of the law will benefit from the new brain science. As we understand that human emotions and cognition are simply the product of the material operations of our brains, and are able to provide clear pictorial evidence of how human beings make decisions and determine their preferences, all sorts of sub-branches of the legal enterprise, from contracts to marriage law, from property to estate and inheritance law, will fall under the sway of ‘objective neurobiological evidence’ (p. xiv). Once we grasp how our brains work, nothing else is material, for all human action, all human thought, all of society and social institutions, issue from those billions of cells and their interactions. And the scientific truth of the matter, as Joshua Greene and Jonathan Cohen inform us, is that ‘in a very real sense we are all puppets. The combined effects of gene and environment determine all of our actions’ (p. 217).

But Scull is not giving up so easily to this biological determinism and shaky metaphorical reasoning.

From this dream of certitude, however, we may happen to awake. If we do so, we may recall that we have been here more than once before. Many prominent Enlightenment philosophers advanced views of this sort. Cabanis (1802) famously claimed that the brain secretes thought just as the liver secretes bile, and neatly anticipated Hinde’s claims about the male/female divide: ‘Il faut que l’homme soit fort, audacieux, entreprenant; que la femme soit faible, timide, dissimulée. Telle est la loi de la nature’…

If this crude materialism might be seen as a passing phase, nothing more than a manifestation of Enlightenment enthusiasm, subsequent attempts to reduce human nature to biology have often had more sinister overtones. For 19th century physicians, few facts were more incontestably established than that the female of the species was ‘the product and prisoner of her reproductive system’ (Smith-Rosenberg and Rosenberg, 1973, p. 334). Woman’s place in society—her capacities, her roles, her behaviour—was ineluctably linked to and controlled by the existence and functions of her uterus and ovaries… Race suicide loomed for societies that permitted women to substitute (indubitably second-rate) intellectual endeavours for their real task: focusing their physical and mental energies on reproduction and on the care of the male of the species. For Victorian brain scientists, the facts of physiology thus definitively proved that the existing gendered social and moral order was rooted in the stern realities of the natural world.

Perhaps things are different this time around? Perhaps the book has learned some lessons from the past?

[T]he editors (p. xv) themselves acknowledge that ‘there are particular inhibitions and taboos about the biology of moral judgement that grow from the deployment, in past years, of cartoons of this kind of science as window dressing for ideas, some of them quite hideous, that had their sources in other passions’. But our science is a dispassionate science. And recognition of a dreadful past, ‘properly understood’, calls ‘more for caution than for exclusion’ (Jones, p. 63). This time around, we can rest assured that things are different.

But it is time to ‘fess up’. This time around, things are not different. The ‘findings’ reported in Zeki and Goodenough are for the most part a farrago of nonsense, unsupported speculation, breathtaking chutzpah and massive exaggeration. After our entertainment by speculative evolutionary geneologies, we are treated to a host of bathetic insights: ‘children have propensities for both prosocial and selfishly assertive behaviour’; ‘in practice rights are not quite “inalienable”, and differ to some extent between cultures’; in potentially cooperative situations, ‘the decision of whether to take action involves apparently both cognitive mechanisms and trust and reciprocity and social mechanisms’; ‘because law is generally generated by a subgroup, it most probably will operate to promote that subgroup’s welfare’. No kidding! I thought it was sociologists who recycled the trite and the obvious and called it an addition to knowledge.

Scull then savages those evolutionary psychologists for their bad science.

Elsewhere, the evolutionary biology, psychology and economics that are invoked to support democratic ‘instincts’, property ‘instincts’ and justice ‘instincts’ are invented whole cloth in the crudest of fashions, and used to provide a naturalistic justification for the particular social arrangements this group of scholars happens to prefer (and that, as it happens, I tend to prefer too). Over and over again in the discussions of the origins and existence of supposed instincts, we encounter the weasel words ‘perhaps’; ‘could have been’; ‘must have’; ‘may’; ‘probably’; ‘it is not surprising that’; ‘the evidence [sic] favours the view that’; ‘likely to have been’; ‘in keeping with the view that’; ‘it is reasonable to assume that’; ‘presumably’. Instincts are postulated in a frivolous fashion to provide support for whatever social arrangement is either observed or desired, and where reality diverges from what the postulated instinct dictates, the authors simply invent another ad hoc explanation of why this might be. ‘Our operative legal principles exist because they more or less capture an intuitive sense of justice’ (Greene and Cohen, p. 208). I see. Then how do we account for Mao’s China, Hitler’s Germany, Castro’s Cuba, Verwoerd’s South Africa or a whole host of patently unjust societies to which one could point? Well, those societies somehow temporarily deviated down pathways at odds with our instincts. Too bad that such deviations make up most of recorded human history.

As might be clear, Scull does reserve most of his scorn for the evolutionary psychologists. He sees the neuroscientists at least drawing on evidence from brain scans and the like, but is dubious both about the scientists’ causal reasoning and what impact this sort of data might have in jurisprudence.

Only to a quite limited degree and in very restricted circumstances are neuroscientific advances likely to have relevance for such things as the current legal system. Much is made of the fact that particular regions of the brain show heightened levels of activity on fMRIs when people, for example, are making choices, or telling lies… When I move, speak, think, experience an emotion, one may presume this is correlated with physical changes in my brain, but such correlations prove nothing about the causal processes involved, any more than—note well—the existence of a particular sequence of events demonstrates that some early event in the sequence ineluctably caused a later event. Post hoc ergo propter hoc is an elementary logical fallacy…

[J]ust as economists traditionally rely upon absurdly oversimplified portraits of human motivation to construct their models, so all the neuroscientific findings that are so proudly proffered reflect simple simulated experiments that in no way capture the intricacies of everyday social situations, let alone the complex interactions over time that make up human history.

Thus, in the end, Scull does see some application from the neurosciences, but it’s an incremental change, not a radical one.

One can grant that people who have suffered massive damage to their prefrontal cortex may reason differently from the rest of us, and perhaps be so lacking in inhibition as to find it difficult to exercise the forward planning, the emotional self-control and the tact that is required to be a fully functioning member of society. (One can grant, indeed, that dead people do not seem to think at all.) We had a naturalistic experiment of just this sort back in the 1940s, when neurosurgeons and psychiatrists used their primitive understanding of human brains to justify damaging the frontal lobes of mental patients to ‘cure’ them—and the lobotomized did indeed exhibit such symptoms and deficits. Were contemporary neuroscience to demonstrate the existence of similar physical malfunction in some people who have not had lobotomies that might very well bear on the issue of holding such people legally responsible. But knowledge of this sort would require no more than a marginal adjustment of existing legal practice, not a wholesale rethinking of our entire judicial system.

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