Neurolaw: Leaving out a big piece of the puzzle

Last Sunday's New York Times Magazine ran a nine-page article about neurolaw. "The Brain on the Stand" by Jeffrey Rosen presents in a readable style part of the challenging puzzles confronting the law as more is learned about the brain. Curious omissions from the article were the phenomena of neuroplasticity and self-directed neuroplasticity. Rosen described the brain as if it is static and unchanging, as if we are stuck with the brain we have.

The hole in the story was particularly glaring in the discussion of responsibility for our actions. Rosen talked about the brain as if we have no control over how it is rewired or, to use a word from the title of Dr. Ian Robertson's book Mind Sculpture, how it is sculpted. If we have no control over our brain then maybe we have no control over our actions? Although researchers probably do not know the limits to self-directed neuroplasticity, there is no doubt that we can rewire and sculpt our brains. Therefore to talk about responsibility as if we have no control over our brain is puzzling.

Rosen quotes Dr. Joshua D. Greene.

“To a neuroscientist, you are your brain; nothing causes your behavior other than the operations of your brain,” Greene says. “If that’s right, it radically changes the way we think about the law. The official line in the law is all that matters is whether you’re rational, but you can have someone who is totally rational but whose strings are being pulled by something beyond his control.”

Rosen adds:

In other words, even someone who has the illusion of making a free and rational choice between soup and salad may be deluding himself, since the choice of salad over soup is ultimately predestined by forces hard-wired in his brain.

Although many neuroscientists do hold this materialist position, research is showing them wrong. Nevertheless belief that the brain is in the driver's seat is still the majority position. Earlier this year, an edition of TIME Magazine featured that organ in our skull. One of the articles was written by a leading proponent of the hypothesis that the brain is in control: The Mystery of Consciousness" by Dr. Steven Pinker. Pinker writes:

Our thoughts, sensations, joys and aches consist entirely of physiological activity in the tissues of the brain. Consciousness does not reside in an ethereal soul that uses the brain like a PDA; consciousness is the activity of the brain.

Consciousness turns out to consist of a maelstrom of events distributed across the brain. These events compete for attention, and as one process outshouts the others, the brain rationalizes the outcome after the fact and concocts the impression that a single self was in charge all along.

Few scientists doubt that they will locate consciousness in the activity of the brain. For many nonscientists, this is a terrifying prospect. Not only does it strangle the hope that we might survive the death of our bodies, but it also seems to undermine the notion that we are free agents responsible for our choices.

Fortunately some voice was given to the idea that we are in control of our brains. In her article "How The Brain Rewires Itself," Sharon Begley described the work of Dr. Jeffery Schwartz, one of the leading experts on self-directed neuroplasticity:

When OCD patients were plagued by an obsessive thought, Schwartz instructed them to think, "My brain is generating another obsessive thought. Don't I know it is just some garbage thrown up by a faulty circuit?" After 10 weeks of mindfulness-based therapy, 12 out of 18 patients improved significantly. Before-and-after brain scans showed that activity in the orbital frontal cortex, the core of the OCD circuit, had fallen dramatically and in exactly the way that drugs effective against OCD affect the brain. Schwartz called it "self-directed neuroplasticity," concluding that "the mind can change the brain."

For a good review of much of the research showing that the mind can be in control if we want it to be, read one or both of the two books on neuroplasticity described here, or the above-mentioned Mind Sculpture: Unlocking Your Brain's Untapped Potential. I am not sure why the materialists continue to occupy the spotlight but I am hoping to see that shifting soon. Imagine what a different article Rosen's on neurolaw would have been had he included neuroplasticity. Maybe he might have speculated in the section on responsibility about our moral or civic obligation in how we sculpt our brains? Do some reading and see what you think. I would appreciate your comments.

Note (added March 19, 2007, 11:51 PM Mountain): Doctors Fernette and Brock Eide posted at Eide Neurolearning Blog commentary on the Rosen article.

Comments

[Tim Bailey]

This is interesting, and worth noting since the nature of the mind is far from a decided issue. However, how does it matter, in any substantive sense, that people can reshape their minds, in the context of determining legal culpability? Whatever the form or mechanism that shaped the "bad thoughts" of the accused, the question is only ever "did the accused intend or contemplate the bad act?" The issue raised by Greene & Rosen turns on that specific point. Thoughts may be shaped by neuroplasticity -- self-directed or otherwise -- but a person is never accused of having shaped their mind so as to lead to the impugned act. The chain of causation (of the act) would be entirely too long to sustain any realistic inquiry.

[Diana L. Skaggs]

Excellent post, Stephanie. I think you should submit it to the New York Times. Diana

[Ellen Weber]

I'd love to hear a bit more about what the puzzle would look like with this piece added, Stephanie. Great post and thanks for nudging our thoughts on this one!