Neurolaw This Is a FM Blank Page Eugenio Picozza Editor

Neurolaw ThiS is a FM Blank Page Eugenio Picozza Editor

Neurolaw An Introduction Editor Eugenio Picozza University of Rome Rome, Italy

ISBN 978-3-319-41440-9 ISBN 978-3-319-41441-6 (eBook) DOI 10.1007/978-3-319-41441-6

Library of Congress Control Number: 2016954322

© Springer International Publishing Switzerland and G. Giappichelli Editore 2016 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made.

Printed on acid-free paper

This Springer imprint is published by Springer Nature The registered company is Springer International Publishing AG Switzerland This book is dedicated to Angelo Falzea, incomparable Master of Law and Phenomenology. ThiS is a FM Blank Page Foreword: The Neurocognitive Turn in Law and Its Epistemological Aspects

Introduction

In recent years, theories and applications from cognitive neuroscience have started affecting the law. This impact regarded legal systems around the world—especially common law systems such as the United States (Garland 2004), but also Europe (see Spranger 2012) and civil law systems such as Italy1 (Bianchi et al. 2009; Santosuosso 2009; Sirgiovanni et al. 2016). The interaction between neuroscience and the law has been characterized mainly by a practical dimension. What happened is that neuroscientific theories and technologies have been used as evidence in trials, especially in criminal trials, and particularly in the context of expert assessment of insanity (see Sirgiovanni et al. 2016), whereas other marginal uses included neuroscientific tests of lie detection2 (see Corbellini and Sirgiovanni 2013; Di Giovine 2014; Goodenough and Tucker 2010). Neurolaw, to which this volume is dedicated, has the aspiration to indicate a theoretical dimension as well. Peculiarly, neurolaw, like all new theoretical approaches to traditional disciplines terminologically identified by a neuro-root (primarily the forerunner “neurophilosophy”, see Churchland 1986, 2002), is

1Two famous cases in Italy have been: Corte d’Assise d’Appello di Trieste, 18/09/2009, no. 5; Tribunale ordinario di Como, 20/05/2011, no. 536. Other cases: Cassazione Sezione IV Penale, 04/06/2009, no. 1671; Tribunale di Torino, 19/04/2011, no. 2029; Tribunale di Cremona, 19/07/ 2011, no. 109; Tribunale di Venezia, 24/01/2013, no. 296. Italian cases have been debated internationally. 2In India, a woman was convicted of ﬁrst degree murder based on the results coming from a brain technique (Brain Electrical Oscillations Signature, or BEOS) used as lie detector, but she was later exonerated on appeal for lack of evidence (see Murphy 2009). Even in Italy, cognitive tests (Implicit Association Test, or IAT, and Timed Antagonistic Response Alethiometer, or TARA) have been used in a trial for sexual abuse to establish the presence of autobiographical memories in the victim’s mind/brain (Tribunale di Cremona, 19/07/2011, no. 109; see Agosta and Sartori 2013).

vii viii Foreword: The Neurocognitive Turn in Law and Its Epistemological Aspects intended as a project of conceptual reformulation of current legal notions and theories, a reformulation informed precisely by cognitive neuroscience. This introductory chapter focuses on the epistemological aspects of neurolaw, specifically on the problem of the relationship between folk psychology and scientific psychology (understood today as part of the cognitive neuroscience project) in the law. This is a specific theoretical issue afflicting neuro-approaches in general, and more recently neurolaw, which aims to handle the discrepancy between commonsense views of behavior, as today represented within the various legal systems, and scientific views, as offered by contemporary cognitive neuroscience. This epistemological question represents a turning point in the current international debate about neurolaw. In this chapter this question serves to wonder about the epistemological legitimacy and relevance of neurolaw, as it will be described and discussed in other chapters of this volume. Hereafter, I will defend, although critically and with some clarifications, the view that there are good and substantial reasons to convert folk psychology guiding current legal systems into a neuroscientific conception of law. As we shall see, this does not mean that psychological language is going to disappear, but that it is going to align to mature scientific theories about the brain and human behavior. In particular, I will argue against a specific approach in the international debate, which defends folk psychology in the law and whose argument is actually, as we shall see, a restatement of the instrumentalist thesis in defense of folk psychology which emerged previously in the cognitive debate. Clearly this question needs to be differently addressed by civil law and common law systems, as well as by different national legal systems, but I will discuss it generally from a philosophical point of view without particular specifications. By contrast, I will support the idea that a legal system inspired by neuroscience would be potentially more effective than the current system because it would permit greater control over the variables involved in the application of norms. By addressing this question, I will also critically evaluate theoretical implications of law and examine whether and in which aspects neurolaw will be actually revolutionary in epistemological terms.

Law and Folk Psychology

Law is full of commonsense psychological categories and theories. Psychology comes into play in the law for instance in criminal justice,3 primarily to characterize the so-called mental elements of an offense (i.e., mens rea) and inﬂuences the theories of responsibility, culpability, and punishment. Stephen Morse (2011b,

3Criminal law is not the only field of neurolaw, which has potential implementation also on aspects of private law, commercial law, constitutional law, and administrative law (see others chapters in this volume). Foreword: The Neurocognitive Turn in Law and Its Epistemological Aspects ix pp. 530–531) describes the presence of psychological concepts in the law as follows: Criminal law presupposes the ‘folk psychological’view of the person and behaviour. This psychological theory causally explains behaviour in part by mental states such as desires, beliefs, intentions, willings and plans. [...] To understand the importance of mental states, consider the criteria for criminal responsibility: the elements of the prima facie case—primarily acts and mental states— and the absence of an affirmative defence. All are infused with mental states. All crimes include a ‘voluntary’ act requirement, which is defined, roughly, as an intentional bodily movement [...] done while the agent is in a reasonably integrated state of consciousness. [...] Other than crimes of strict liability, all crimes require a culpable further mental state, such as purpose, knowledge, or recklessness. Some crimes are also defined with the mens rea of negligence, which appears to be the absence of mental state. [...] All affirmative defences and excuse involve an inquiry into the person’s mental state, such as belief that self-defensive force was necessary or the lack of knowledge of right from wrong. Although rarely this is expressed in clear form, legal categories refer to a conception of mind. The conception of mind that explicitly or implicitly appears in legal systems, which reflects the commonsense way of interpreting these categories, is called commonsense psychology or folk psychology (henceforth, FP). The fact that folk psychology inspires psychological categories in the law is generally acknowledged by legal scholars (see also Morse 2013, pp. 27–52). As we will see, if FP is intended to be an intuitive strategy of social interaction, law can indeed be thought as a developed and specialized form of FP. This section briefly explains what folk psychology is by presenting the argument of those who believe that we should preserve folk psychology in the law and oppose the idea that neuroscience will be able to offer a reformulation of legal categories and theories.4 I will present a prototype version of this argument, although the American lawyer Stephen Morse (2004, 2006, 2011a, b) is, as we shall see, one of its main proponents. This argument in various forms finds agreement also among neuroscientists (e.g. Gazzaniga 2005; Greene and Cohen 2004). A long time before legal scholars started to get interested in neuroscience, and over at least the last 60 years, discussions and views about FP had a pivotal role in the philosophical debate of cognitive science. What is folk psychology? FP is generically a (not necessarily specific and well defined) theory about the human mind, a theory that ordinary people are inclined to assume and that depends on some cognitive abilities that humans possess to—according to what many philosophers and scientists think—attribute, explain, predict, and manipulate behavior5 (Stich and Nichols 2003, pp. 235–255). This general definition aims to cover

4Some authors who opposes this theoretical reformulation project are also against the use of neuro- technologies in trials (e.g. Pardo and Patterson 2013; Morse 2004, pp 157–198; Morse 2015). This question is however beyond our scope here. 5The Machiavellian hypothesis (Byrne and Whiten 1997, pp. 1–23; see also Trivers 2011) argues that primitive mentalizing capacities within ancestral groups have evolved to succeed in social manipulation. Other hypotheses suggest that these capacities arose with the development of x Foreword: The Neurocognitive Turn in Law and Its Epistemological Aspects roughly three directions of FP, which have been used in the philosophical debate. These three meanings are related, but sometimes also distant (see Ravenscroft 2010): (1) FP identifies a set of cognitive abilities (mentalizing, or mindreading); (2) these capabilities produce a sort of theory, instantiated in some mechanisms in the brain (theory of mind);6 (3) there are some psychological theories favored by the multitude (platitude account). Regardless of how we represent functionally FP or its mechanisms, what interests us here is that FP is characterized as a folk conception of mind, not necessarily a conscious nor universal one. The idea that human beings are rational, that consciousness is the seat of our will and therefore the source of our actions, or that our actions are free are all examples of intuitive, naı¨ve or folk psychological views. We can infer that FP is not necessarily conscious from the fact that it seems implausible that people explicitly agree with any intuitive view suggested by their abilities of mindreading (Stich and Ravenscroft 1992). Experimental philosophy is a method that have been recently developed to test this kind of intuitive concepts and views, which are often unconscious (Knobe and Nichols 2008). Moreover FP is not universal, because folk-psychological theories depend on the cultural and historical context. For instance, not all cultures or societies in different historical periods believe or have believed in the existence of consciousness or free will. Finally, FP is variable both among different individuals in terms of performance and skills, such as memory and executive function (Fletcher and Carruthers 2012; Baron-Cohen et al. 2013), and in the same individual over a lifetime. It is possible to think of folk psychology in analogy with folk physics or astronomy. Folk physics (or folk astronomy) is the intuitive way through which human beings perceive, explain, predict, manipulate physical phenomena (McClos- key et al. 1983). For instance, the belief that a dropped object falls diagonally or that the sun turns around the earth are part of this folk view that comes directly from our senses. These folk beliefs are, from a scientific point of view, false beliefs, systematic errors or recurring biases. Folk physics is a formalized theory, although complex conceptions have existed in the past—think of Aristotelian-Ptolemaic physics or astronomy—which originated from our senses and intended to explain what our senses suggest. Basically folk theories tend to respond to a strong principle of observational adequacy by using intuitive and unscientific methods such as direct observation. By relying on what is immediately suggested by our senses, folk

mechanisms of human communication (Tomasello 2008) or social cooperation (Richerson and Boyd 2005; Hrdy 2009). 6Traditionally two alternative views have tried to explain mindreading mechanisms: the theory of theory (TT) and the simulation theories (ST). In one case, the presence of a database of principles in a dedicated mental module is supposed to account for mindreading capacities. In the second case, it is assumed that mentalization occurs via an atheoretical, simulation process, which is understood by some authors as introspective while other authors conceive it as an automatic resonance. Recently, neurocognitive debate seems to have converged into an ecumenical position which incorporates intuitions from both positions and it is interested to the neural basis of these capacities (Apperly 2008, 2012). Foreword: The Neurocognitive Turn in Law and Its Epistemological Aspects xi theories may reach that immediate and rapid consent among people, even when they are false. Sellars (1956) had highlighted the contrast between the scientific and the man- ifest image of the world and had enormous weight on the following cognitive debate, especially on the development of the eliminativist thesis about FP by Churchland (1989), who was Sellars’ doctoral student in Pittsburgh. According to eliminative materialism, our commonsense conception of psychological phenomena is a false theory, bad to the point that in future it will be supplanted by, when not easily reduced to, neuroscience. Although not everyone agrees that folk psychology is a theory, I will treat FP as a theory. There are arguments in defense of the idea that FP is a theory (Churchland 1989). For example, a common mistake is that believing that FP is a theory implies conceiving it as a structured set of causal and empirical laws, and more specifically as general propositions, stored internally in brain mechanisms, from which we deduce conclusions through deductive inferences. This characterization is radically implausible even for folk physics, folk chemistry or folk biology. Another relevant issue about FP in the cognitive debate, which is echoed by the legal debate, is that FP is not actually a descriptive strategy, but rather a “normative” strategy (Dennett 1978, but also Churchland 1989) because it does not explain or predict how we will behave, but it only says how we should behave. In brief, FP shows us what would make sense to do in those particular circumstances. This normative approach to FP appears in the most recent literature as well (McGeer 2007, pp. 137–156) and claims that folk-psychological strategies are practical and pragmatic solutions to problems, more similar to a technique, a “craft” than a science (Dennett 1998). This objection, as we shall see, is commonly used to support the idea that it is not very important that folk-psychological strategies, including the law, made use of true assumptions about human behavior. Although FP may be intended as non-descriptive, a claim that is not shared by everyone in the debate (see Andrews 2012), what interests us is the fact that folk- psychological abilities implicitly produce assumptions about the functioning of the human mind, and therefore hypotheses or generalizations—or we may also intend them as idealized descriptions, and that these descriptive assumptions are the basis to make predictions and to respond to social situations. Common debates in philosophy of mind focused on the issue of the existence of the elements of FP (beliefs, desires, intentions, etc.) and on the problem of how to reduce these elements to lower level explanatory elements (i.e., the neurophysiological mechanisms). In the neurolaw debate as well, this issue has been presented as an issue about whether or not the terms and the language of FP in the legal domain are reducible to the language of neuroscience. Stephen Morse himself has given attention to the problem of the relationship between causes and reasons, or better between mechanistic and intentional explanations. He also stressed that this translation is going to fail and that this would lead neurolaw to an impasse (see Morse 2011b, pp. 529–562). However, although important, this aspect is not the focus of our discussion. What is relevant here for us is that folk psychology produces some kind of tacit “knowledge”, a—even if not stable—set of general theoretical xii Foreword: The Neurocognitive Turn in Law and Its Epistemological Aspects assumptions, which, given their shared intuitive nature, tend to be preferred to a largely counterintuitive but controlled knowledge such as scientific knowledge. FP in fact, even if it is not a theory itself, produces theories, which neuroscientific findings may confirm, change or refute over time. For example, in the law one of these theories is “a view of the person as conscious (and potentially self-conscious) creature who forms and acts on intentions that are themselves the product of the person’s other mental states such as desires, beliefs, willings, and plans. We are the sort of creatures that can act for and respond to reasons, including legal rules and standards that are expressed and understood linguistically” (Morse 2011b, p. 531). Traditionally one of the most significant defenses of FP in the cognitive debate (excluding the realist argument, for example by Fodor 1987) has been an instrumentalist argument, aimed at showing FP utility and especially its predictive power. This argument has developed in the framework of pragmatist philosophy and influenced by utilitarian instrumentalism. Specifically, instrumentalists test and evaluate theories, which are intended as mere instruments and not as necessarily describing something real, just on the base of their ability to maximize value, or through their ability to predict and affect expected consequences (Dewey 1938; Popper 1965). Without necessarily endorsing realism or objectivity of FP assumptions, instrumentalist views in the debate (Davidson 1980; Dennett 1978, 1987, 1998) have been and continue to be especially attractive (see Legrenzi and Umilta 2014). What does their argument say? For instrumentalists,7 FP is above all a practical tool which, even if it implies a false theory, still remains useful and it is useful because it works (see Dennett 1998). For FP supporters, FP is a heuristics that has the advantage of reducing uncertainty by making the environment more predictable. The legitimacy of FP is therefore determined by its usefulness. For instrumentalists, the fact that FP is actually true or not is of little consequence. Daniel Dennett offers a popular example, the pilot of an airplane who may have the wrong theory of flying and yet be a good pilot. He says: Jet airplane pilots tell their students, “This is how you fly a jet plane.” They even write books about how they fly jet planes, but often that is not how they fly. They often don’t know what they’re doing. (Dennett 1998, pp. 83–84). FP is necessary to everyday life: it allows us to get by in the social world and helps us to control biological and artificial systems through manageable and predictive models that emerge by taking an “intentional stance” (Dennett 1978), which consists in attributing mental states (“intentions” in the broader sense). In brief, whether FP is a true theory or not, we should act as if the knowledge produced by our common discourse of beliefs, desires and intentions is true, and this turns to be effective in everyday life. For instrumentalists, FP is a strategy, an idealizing, abstract, instrumental, evolved tool of interpretation, which still works well. The argument of those who claim that FP will eventually survive within the law (“neuroscience will change nothing”, from Greene and Cohen (2004)’s expression),

7Dennett rejected the label of being an instrumentalist (Dennett 1987; see also Simons 2002). I will continue to use this expression for convenience and clarity. Foreword: The Neurocognitive Turn in Law and Its Epistemological Aspects xiii regardless of whether FP is a true or a false theory, is an instrumental argument in defense of FP, with some specifications determined by the legal context. A prototypical argument in defense of FP in the legal debate, whose Stephen Morse is one of the main representatives (see Morse 2003, 2004, 2006, 2011a, b, 2013), generally consists of a few recurring ideas, which can be summarized in four claims. Firstly, law is a normative system, and not scientific knowledge. Secondly, law is nothing more than a tool. Thirdly, what is relevant is that this tool works (and as an evidence, it has worked well so far). Finally, it would be too effortful—in terms of energy—to change our FP to reform the law. In sum, neuroscience will never fulfil this project. Stephen Morse (2004, p. 158) defines law as follows: Law is a socially constructed, intensely practical and evaluative system of rules and institutions that guides and governs human action, that helps us live together. It tells citizens what they may, must and may not do, and what they are entitled to, and it includes those institutions to ensure that law is made and enforced. According to Morse, despite existing theoretical distinctions within distinct approaches, “all commentators would agree with the foregoing description” (Ibid.). For Morse, “although neuroscientific evidence may surely provide assis- tance in performing this evaluation, neuroscience could never tell us how much control ability is required for responsibility. This question is normative, moral and ultimately legal” (Morse 2006, p. 39). In short, science deals with facts in the world, whereas law deals with norms, but norms are those to guide action. The normative level is irrefutable on factual bases because norms do not derive from facts. Or better, how men behave is not how they should behave, as expressed by one of the versions of what is generically called naturalistic fallacy (Hume 1739; Moore 1903; see also Curry 2006, for recent discussions), which is even more evident for an artifact as a legal system where norms are established conventionally8 (unless we endorse a natural law view). Even the psychological categories that law uses, in this perspective, are intended to be normative and not descriptive. For example, rationality for Morse is “the touchstone of responsibility” (Morse 2004, p. 165) and “the law’s concept of responsibility follows logically from its conception of the person” (p. 164), in other words a version of our ordinary conception of the person. He claims that responsibility “must be understood according to some contingent, normative notion both of rationality and of how capability is required” (p. 165). Therefore, psychological notions in the law are built on a normative, idealized level to make the notion of responsibility work. This view can be found also among scientists like Gazzaniga (2005) and Greene and Cohen (2004). Psychology underlying law is considered a “practical” explanation (Morse 2011b, p. 530) and, again according to Morse, “there is seldom any need to identify

8There is actually no theoretical consensus about what is the sense of the statement that laws are norms, but several answers have been suggested (see Shiner 2010, pp. 417–445). Some of these answers are internalist as they believe that norms are determined by internal criteria within the law, while others are externalist and believe that criteria comes from outside the law. xiv Foreword: The Neurocognitive Turn in Law and Its Epistemological Aspects or question it” (ibid., p. 529). Without this psychological theory, “law as action- guiding normative systems of rules and standards would be useless, and perhaps incoherent” (p. 531). Even Gazzaniga (2005) argues that the brain sciences have little to offer about responsibility. He holds that responsibility is a human construction, and “no pixels in the brain will ever be able to show culpability or nonculpability” (p. 100). The idea of responsibility is “a social construct that exists in the rules of a society, and not in the neuronal structures of the brain”. Greene and Cohen (2004) argue that legal principles are “operative” (p. 1775) and that neuroscience will not produce anything for which law may be unprepared. According to these authors, law was built from experience and has essentially produced a system of rules that is effective in practice (intending effectiveness either as a power of coherence within the system or as the ability to achieve its goals, that is, the good functioning of society). In the cognitive debate, the importance given to FP made some authors like Jerry Fodor claim that “if commonsense intentional psychology really were to collapse, that would be, beyond comparison, the greatest intellectual catastrophe in the history of our species” (Fodor 1987, p. XII). However, the widespread idea seems to be that if we reformulate folk-psychological categories in the light of reductionism the investment of energy would be cognitively too onerous (Legrenzi and Umilta 2014, hold this view inspired by Kahneman 2011) and thus that such a reformulation is not desirable. According to Morse (see 2004, p. 184), also, law “in many respects a conservative enterprise” and “there will always be resistance to supposed reforms other disciplines suggest.” This conservatism is, in his opinion, internal to legal disciplines, but results mainly from the failure of other disciplines to provide reliable data that could undermine behavioral assumptions upon which legal doctrine is based. His prediction is that science will have little impact in the long term.

The Epistemology of Contemporary Cognitive Neuroscience, the Role of FP and Some Recurring Misunderstandings

Neurolaw has recently given rise to a debate about brain theories that seem to undermine some legal assumptions. Some examples are: findings of EEG and fMRI experiments, which showed that the unconscious brain activity of a motor decision begins half a second before the subject consciously perceive that he/she had decided to move (see Libet 2004; Soon et al. 2008); a large amount of data that show how confabulations (imaginative reconstructions of actions) in healthy subjects, which depend on cognitive biases of various kinds (Nisbett and Wilson 1977) and errors in the attribution of authorship and ownership of intentional actions (Wegner and Wheatley 1999; Haidt et al. 2000); the crucial involvement of emotional brain areas in moral judgments (Damasio 1994; Greene and Haidt 2002; Blair et al. 2005). In their radical interpretation, these findings seem to suggest that healthy humans in Foreword: The Neurocognitive Turn in Law and Its Epistemological Aspects xv moral contexts are not rational, they fail in reconstructing events they experienced, they are not conscious of their voluntary acts. This affects legal issues such as responsibility attribution or testimony (see also Goodenough and Tucker 2010). These results have been prevalently discussed as refutations of free will in the light of determinism, and therefore as impacting the kind of self-determination required in the common legal conception of responsibility.9 However, a more sound interpretation understands them as showing how unconscious states affect our decisions and actions determining them in ways of which we are unaware (see Roskies 2012) and thus questioning the role of consciousness in responsibility, which is an assumption in many criminal systems.10 Rather than discussing those results, I intend to assess an epistemological issue here, or better to understand the epistemological assumptions of contemporary cognitive neuroscience and the consequences for FP. The epistemological model upon which neurolaw is based comes from cognitive neuroscience, a specific and recent approach in cognitive science from the 80s driven by a reductionist account of the mind-brain. Reduction in cognitive neuroscience, so-called mechanistic (Bechtel 2008; Craver 2007; Craver and Darden 2013), differs from the traditional reductionist accounts in being an epistemo- logically pluralistic and integrative view (see Van Riel and Van Gulick 2014, for a historical reconstruction on scientific reduction). As we shall see, mechanistic reduction has nothing to do with the idea that FP is not relevant or is destined to disappear (the so-called eliminativism). Thus, arguments of defenders of the autonomy of special sciences have little to say against mechanistic reduction. These are the sort of misunderstandings that continue to dominate the anti-reductionist side in the debate. The issue of reduction had occurred in the cognitive debate from the beginnings, along with the early developments of neuroscience, which employed local reductions (one-to-one reductions, preferably to the micro level). An example is the neurophysiology of pain, from which the famous expression “pain ¼ activation of C-fibers” which dominated the early philosophical debate on the topic in the 50s and became an exemplary of type-identity between mental faculties and brain processes (see Smart 2007, for a reconstruction), and thus a model for reduction in cognitive science (Nagel 1961). During the 70s, the reductionist approach had then given way to an “anti-reductionist consensus” (Block 1997), which had circulated in the intellectual culture as the idea that the reductionist approach was naive and outdated (Kim 1998). On the theoretical level, antireductionism still encounters theoretical obstacles, which are even harder than those that a reductionist account has to face, such as the problem of explaining and justifying more or less

9According to Morse (2007), law does not presupposes free will, and therefore this is not a real problem. 10Note that neuroscience influence on the law is not intended to remove the “agent” in the attribution of responsibility, but simply it aims at reformulating it so that it can reflect those theories that explain scientific results, thus more controllable theories. xvi Foreword: The Neurocognitive Turn in Law and Its Epistemological Aspects radical versions of dualism in the scientific-materialistic perspective shared by the cognitive approach. For example, antireductionists need to explain how mental properties might be distinguished from, and yet identified with, brain processes and still have causal power over them. The reductionist account has emerged again on the practical level, when since the 80s the advances of neuroengineering introduced more powerful tools and devices to investigate the brain and allowed to localize cognitive functions in neural mechanisms. Especially, this has been possible with the development of artificial neural networks for simulations in the field of robotics and artificial intelligence, as well as with the introduction of tomographic techniques such as structural and functional neuroimaging techniques (e.g. CT, MR, PET, or fMRI) and, more recently, brain stimulation techniques (such as deep brain stimulation or transcranial magnetic stimulation) in the clinical domain. A group of philosophers (New Wave) endorsed the reductionist account while these technologies were emerging (Schaffner 1967, 1993; Hooker 1981; Churchland 1989). Since then, this account has been corrected and gained growing consensus. Today the reductionist account has a different connotation even from these revisionist attempts and has embraced some of the objections made to traditional reductionist accounts (see Bechtel and Hamilton 2007). Although differences among original and revisionist versions may be traced (Ibid.), traditionally reduction has been conceived as a theory-reduction, relying on the assumption that reduction consists of reducing the theories of each higher discipline (i.e. psychology) to theories of a lower discipline (neurobiology) on the model of reduction of classical thermodynamics to statistical mechanics. Reduc- tions between theories of psychology and theories of neurobiology are very rare. Usually theories do not possess the same degree of specificity in different domains at the same time, but it is the coexistence of incompatible theories that allows a “selection pressure” that leads to mutually constrain the various theoretical levels and the choice of a common theoretical direction (De Jong 2002). Early reductionist accounts believed that these reductions would be the result of deductions from the laws of the lower science to the laws of the higher science (this is the so-called deductive-nomological model, see Hempel and Oppenheim 1948) through bridge principles, whereas revisionists intended the deductions from an “analog” of the reducing theory under certain conditions (formulated in the language of the reduced theory) to the reduced theory, with analogical relations playing the role of bridge- laws in the previous model (Hooker 1981). However, in disciplines like psychology and biology, rarely we possess recognizable laws or bridge principles to be used in such a way (Schaffner 1993), and even to revisionists it can be argued that either they suggest mere replacements and not reductions, or they need to justify their reduction-relations exactly as bridge-laws has to be in the original model. Contrary to these traditional models, it has been observed that when we speak of reductions in cognitive neuroscience we actually refer to the work of neuroscientists who explain (mental) phenomena, effects and properties by seeking (neural) mechanisms (Schaffner 1993), or by locating them in physical structures organized in a complex way. Furthermore, this is also related to a constitutive interpretation of Foreword: The Neurocognitive Turn in Law and Its Epistemological Aspects xvii causality (causal-mechanical model for Salmon 1984) according to which the (mental) phenomenon is identified with the outcome of the processing of a consti- tuent structure that realizes such phenomenon, and not not only as a sequence of events preceding it (causal-etiological model). Given these considerations, more recent reductionist accounts have been named mechanistic because they understand reduction as a strategy identifying mechanisms “in practice”, and not as translations of synchronic theories. The identification of mechanistic reduction has led to a post-classical paradigm in cognitive science that recognized the centrality of brain research and generated the new field of cognitive neuroscience (see Bechtel et al. 1998). This approach departs from the classical cognitive paradigm, which was mainly driven by functionalist approaches focused more on psychology and computer science methods. In the classical paradigm, cognition was understood as information processing (the idea of the mind as a software) and psychological functions were studied regardless of the underlying neural structures (the hardware). According to this functionalist approach, just like a computer scientist can design a software and ignore the hardware structures, psychologists and social scientists can work in complete autonomy (Fodor 1974), without worrying too much about neurobiology and neuroanatomy. On the contrary, in mechanistic reduction, crucial to the explanation of behavior is the identification of neural mechanisms as functioning structures, therefore psychology and neuroscience cannot work separately (hence the term “cognitive neuroscience” which combines both cognitive psychology and neuroscience). Although classical and post-classical cognitive science seem to be alternative one to the other, the latter approach is able to encompass the former. Nevertheless this entails endorsing different epistemological assumptions about reduction with further consequences, which derive from the fact that reduction binds functions to structures. Common definitions of “mechanism” in the literature outline the indissoluble link between function and structures. A mechanism has been defined as: entities and activities organized in order to produce regular changes from an initial state (or set up) to a state final (or terminal conditions) (Machamer et al. 2000, p. 3). a structure that performs a function by virtue of its component parts, components and operations of their organization. The operation of the mechanism is orchestrated responsi- ble for one or more phenomena (Bechtel and Abrahamsen 2005, p. 3). In other words, a neural mechanism is identified both by the phenomenon (cognitive function) it realizes and by the complex organization of the component parts and their operations, hierarchically from the material/spatial smallest level to the highest levels (genes and molecules, neurons and synapses, areas, networks of brain areas). In a mechanism, these two aspects of the mechanism (function and structure) are not distinct but overlapping: explaining the phenomenon in a mechanistic sense coincides with the identification of the organization of the system. Mechanistic explanation is conducted through two basic heuristics carried on by the contribution from different level disciplines: decomposition of the mental phenomenon in functions and sub-functions, where psychology definitely has a xviii Foreword: The Neurocognitive Turn in Law and Its Epistemological Aspects role and work with other higher level disciplines, and localization of these functions in brain mechanisms, including complex networks of mechanisms and their sub-mechanisms, to which biological sciences contribute mainly. Consider the explanation of spatial memory (Craver 2007, pp. 165 ff.). The explanation of this phenomenon requires roughly four levels of descriptions: the level of spatial memory, or the phenomenon level, which pertains experimental fields as experimental psychology, ethology and behavioral sciences; the level of space map formation, or the descriptive level of the computational properties of neural systems that produce the phenomenon, which is the process of brain regions primarily as the hippocampus, described by neuroanatomy with assumptions that arise in the field of robotics and artificial intelligence; the cellular level of electro- physiological mechanisms like LTP (long-term potentiation), where spatial maps are created and stored by adjustments of synaptic strengths in the hippocampus, an idea that comes from neurophysiology; the molecular level, studied with experimental methods of genetic and psychopharmacology, or the activities of the molecular mechanisms (i.e., the NMDA receptor) that enable the electro-chemical activities at the upper level. The coexistence of different researches, descriptions and languages is typical of mechanistic reduction, which is inherently pluralistic, multidisciplinary, integrative (McCauley 2007, pp. 105–158). The construction of hypotheses like these entails the co-evolution of theories at different levels of description (Churchland 1986). In other words, this model consists of a mutual influence by different disciplines in the search for a coherent explanation and does not consists in the replacement of a higher level theory with a lower level theory, but simply it integrates the higher level theory when possible in such a way to be consistent with the integrated scientific explanatory structure. What role, then, for FP in this perspective? According to William Bechtel (2007, p. 10, ft. 4), one of the leading theorists of the mechanistic approach: Adopting this perspective, we can recognize the mistake of eliminative materialists in maintaining that knowledge of the brain will eliminate the need for folk psychology. Folk psychology, like social psychology, characterizes regularities in the way cognitive agents respond to situations arising in their environment [...]. This is not information that neuroscientists themselves are interested in or have the tools to procure. Therefore, folk-psychological theories have an important role in scientific research. What will remain of these explanations in a more mature neuroscience? Admittedly, if we share a mechanistic perspective, theories that emerge from FP must maintain consistency with the results from the lower level sciences. Common intuitions are intended to be just “sketches” of how the mechanism might work (Piccinini and Craver 2011), and there are descriptions of the phenomena that may be proved to be incorrect. It is true that scientific research makes use of intuitions as a starting point, but these are basically heuristics, to be eventually abandoned when they do not meet scientific criteria (e.g., empirical evidence, theoretical coherence and adherence to the results obtained by other controllable methods). The unity of Foreword: The Neurocognitive Turn in Law and Its Epistemological Aspects xix science is a collaborative process between disciplines, which together build the pieces of a “mosaic” (Craver 2007) starting from different perspectives, techniques and conceptual terms. This does not mean that some vocabularies are destined to disappear. Psychological language is not going to be deleted from our ordinary speech. The idea is that cognitive neuroscience is likely to produce severe psychological reformulations that is a scientific psychology, which will be the result of these interdisciplinary comparisons. Scientific psychology is going to link up with what is known about the underlying mechanisms and to be inserted in the mosaic unit. What will rather disappear are commonsense or folk theories that may prove to be erroneous, inadequate or inconsistent. However, this does not mean that some of these theories or some of their assumptions might not be recovered later on, to be tested and to build new theoretical hypotheses. Reformulations and mutual selective constrains between disciplines will produce a co-evolution of the different disciplines, whose directions are certainly not foreseeable at this time.

Why the Law Should Adhere to Neurocognitive Epistemology

In this section, I will try to argue why and in what way the law should adhere to this epistemological framework offered by cognitive neuroscience. A prototypical argument of the defenders of FP in the law—for example, the legal scholar Stephen Morse—will be presented here. Morse’s assumptions, mentioned in the first para- graph, are summarized in these four claims: 1. Law is normative and not descriptive. 2. Law is a practical tool and the only important thing is that it works. 3. Changing the law would be effortful in terms of cognitive energy, thus changing the law would be useless. On the contrary keeping the law as it is would be effortless cognitively and socially, thus keeping the law as it is would be more profitable. 4. Neuroscience is unlikely to produce very solid results to reform the law. Let us start from claim 1. The thesis of the normativity of law, as stated above, can have different theoretical interpretations. If we do not want to assume radically naturalistic or reductionist theories about the law, and given that it is true that law— being a system of norms—is normative, it is also true however that these norms are built and justified in their application by a number of descriptive assumptions reflecting common intuitions about human behavior. In the first place, law hides also a “descriptive” project. A “substantive” project in the law—to use a terminology suggested in ethics by Nichols (2008, pp. 10–31)—is concerned with an investigation preceding the construction of norms and dealing with the attempt to understand whether these folk views describing behavior and defining norms are actually correct. It is reasonable to think that when writing regulations and norms, xx Foreword: The Neurocognitive Turn in Law and Its Epistemological Aspects lawmakers posed themselves such questions. Legal formulations reflects the sensi- tivity of the drafters of the codes (in legal systems where codes are present) or of regulations, as well as the scientific knowledge of their time and, finally, the socio- cultural environment that inspired it. However, what today seems to have changed are the methodologies used to develop those assumptions that form the skeleton on which to build foundational categories orienting legal norms, which are tools that emerge conventionally by virtue of their usefulness (if we are not natural law theorists). The properly “normative and prescriptive” project of the law (again from Nichols’ terminology), which consists of building norms and making others respect them, is based on some additional considerations. For instance, the internal coherence of the system, but also the ability to respond to some requests, needs and purposes that were established at the beginning of the drafting process, or even the goal of give birth to a system that produces the best predictions and consequences for the good functioning of society. This project seems to depend heavily on the ability of the new legal system to integrate the findings from the first two projects (the descriptive and the substantial project), after clarifying whether reforms or revisions are to be made, or if maintaining current practices would be a better choice. Nevertheless, even in the most intuitive construction of legal systems there are descriptive postulates as bases which the normative categories are adjusted to. These postulates constitute boundaries, or conditions of possibility, for the normative categories. If it is true that we cannot derive “oughts” from “is’s”, or rather that neuroscience cannot suggest norms, it is also true that “is’s” implies “mights” and that neuroscience may help suggest what norms are effectively applicable for human beings—because “Not all kinds of food, clothing, and shelter suit us animals, us members of the species Homo sapiens”. Factual descriptions allow at least to discriminate which rules may be appropriate and which are not for creatures like us, structured and functioning in a certain way, or in other words descriptions allow to fabricate a dress that could suit human beings well, that is, neither too tight nor too loose. This certainly does not mean determining our norms from the facts—for example, pretending that facts contain answers to fundamental issues such as those to protect individuals, to administer governance or to the contain conflicts—but it means to have a ground to understand which are the sufficiently realistic criteria we should use to build our legal norms and to predict the efficacy those norms might have. We can now move to claim 2: law as a tool. Instrumentalism in law needs a main requirement: a legal system, regardless its truth, must work well. Rather than validity in explanatory terms, a legal system needs internal consistency and predictive power. Defenders of FP in the law usually argue that law, with its folk- psychological assumptions, has worked well so far, because it is able to produce good standards of conduct for the proper functioning of society. For proponents of neurolaw, though, the idea is that if a legal system is inspired by neuroscience it will work better than a legal system inspired by folk psychology. Let us see why. The argument of the defenders of FP in law is that even if the psychological theory behind the law is false, this theory is able to produce effective predictions and manipulations, therefore law is a good tool as it is. This argument is Foreword: The Neurocognitive Turn in Law and Its Epistemological Aspects xxi correct. However, the fact that such descriptive assumptions produce effective predictions or desired consequences is contingent. If we never question their truth, we will never know why they work. If we never worry about the truth or falsity of the theories about the functioning of the human mind that we use in legal practices, these practices will work or not regardless of our control, and therefore they are unlikely to be easily manageable. To reverse Dennett’s example, if it is true that an airplane pilot who knows little about theory of flying (and aircraft engi- neering, if we want to put the question in software/hardware terms) can be able to fly very well, it is also true that he could learn to fly even better if he knew what happens to the airplane while he flies, for example being capable of managing accidents. Rather than being capable only in practice, a good airplane pilot has better be an expert of flying theory and of the functioning of the aircraft. Another example is that of a doctor who can give a drug to a patient considering only its effectiveness on a statistical basis. Very often, in medicine doctors can only act on this basis. But this does not entail that knowing how the drug works is irrelevant, because this kind of knowledge provides clinicians with better care skills, since they may have more control over the process and a greater prognostic ability. Knowing the descriptive assumptions underlying norms allows to intervene and direct better one’s own resources than in circumstances when they emerge from the mere experience. Consequently, if FP-driven law is effective, it would be even more effective if it were driven by true and controllable theories about the mind- brain. Certainly, accurate predictions about human behavior are not possible. Human behavior is the product of complex stochastic systems (brains under environmental conditions) which are characterized by the non-linear interaction of multiple variables, most of which are random variables—and this is why their predictability is of the highest difficulty. But the more we improve the means to manage these systems, the more we are able to predict them. As an example, weather forecasts are much more reliable today, compared to just 20 years ago, thanks to the introduction of new techniques which refer to stochastic processes such as atmospheric changes. A farmer or a fisherman can make climate forecasts on intuitive bases, for instance by predicting that if there is a black cloud in the sky it will rain, but scientific tools have far greater predictive power and control than this strategy. If we could ideally get under control all the variables involved in the system, our true theory would not produce ineffective forecasts. While this may sound unrealistic, we do know that more variables we are able to control, the higher is the likelihood that our predictions might be effective in a non-contingent way. In addition, we would be able to contain undesirable effects. Let us put aside the legal domain for a moment and think of the use of FP in everyday life. FB is a useful tool, but it is useful because it is the only one we possess intuitively during our daily routines. However, FP is actually an ineffective tool. Most of the predictions made on folk-psychological assumptions turn out to be false. We are not able to read others’ minds at all, we almost always fail (if not for very simple tasks), and when we succeed this happens randomly. When our interpreting others’ behavior and social strategies works, it is simply a coincidence because it is based on assumptions that we do not know to be true or false. xxii Foreword: The Neurocognitive Turn in Law and Its Epistemological Aspects

Pragmatically speaking, we can think of FP as a useful tool, but suppose we possessed a scientific psychology instrument to be used when we need to interpret and predict human behavior, interact with others and implement social strategies. This tool would work even better than FP and would do so because we would be able to make corrections and to better control variables. This is exactly what basic sciences (physics, chemistry, biology) do compared to their folk versions. Neurolaw could make us able to better control the variables involved in the legal processes, and above all to diminish unintended consequences. Claim 3 states that a reformulation of folk psychological categories in law would result in a significant energy cost, and this would be useless. In fact, science constantly leads us to conceptual reformulations. Even though as human beings we tend to be epistemically conservative and blind to change, and scientific revolutions are an exceptional phenomenon, conceptual changes are locally insid- ious processes frequently implemented with little energy costs. Linguistic and conceptual changes often occur without common people having full awareness of them. As happened in the past—think of the impact of the popularization of psychoanalysis—neuroscience is already entering the language and common knowledge and predictably it will in future. Just think of the presence of neuroscience in the media, highlighting certain intellectual trends (see Racine et al. 2010). This is a process that cannot be stopped. If however this reformulation process required any effort, its utility could not be denied. If we had renounced to acquire past scientific discoveries just because they entailed some costs, we would have not received any short-term nor long-term benefits from them. One thing is common life, other is practicing specialized disciplines, which should refer to a rigorous theoretical basis. If we lay in the sun to get tanned and we decide to move our tanning bed, we might comment this decision by saying that “the sun has moved”. Yet we would have some hesitations to rely on the sun’s motion around the earth, which is a false assumption, for building some social norm. Suppose, for example, that from the false assumption of the “sun’s motion around the earth” or from any other perceptual illusion we decided to enforce some sanctions in the highway code. Even if this were acknowledged as a conventional and instrumental rule, some kind of consistency with the real world is requested to conserve neutrality and impar- tiality in judicial decisions. Moreover, an assumption would be instrumentally manageable only if we could clearly account for its falsity and its use on mere pragmatic grounds. If we use conventions we may only benefits from being aware that these conventions are actually false. However, a bad outcome of the use of assumptions that are publicly recognized as false (for instance, because scientific theories have been successfully disseminated) might result into a possible decrease of confidence by general population towards the law. Let us now examine Claim 4. Will neuroscience be able to produce enough strong results to reformulate the law completely? It is clear that we will get answer to this question only in time to come. Skepticism that opponents to neurolaw show seems to be caused by their mistrust in the scientific method itself, which is hardly acceptable. Scientific method, although it may produce errors, it is still the best epistemological strategy we possess. Experiment replications, possible falsification Foreword: The Neurocognitive Turn in Law and Its Epistemological Aspects xxiii of results and the ability of self-correction are the major advantages of science. Neuroscience gave already some relevant results for the legal domain and this is why legal scholars are starting to wonder about them. Some argue (e.g., Greene and Cohen 2004) that in many cases law is prepared to receive them. According to the neuroscientists Joshua Greene and Jonathan Cohen, in many cases, legal categories or regulations are only non-specific indications, so it would be easy to provide small adjustments or interpretations. However, this is not true in every case. In some other cases, neuroscience will possibly open to conceptual revolutions. Greene and Cohen, for example, are concerned with a theory of punishment that is compatible with determinism and identify consequentialism as a solution. As an additional example, if consciousness is a problematic source of the will, this would be something the law should be reformed about because the intuitive thinking inspir- ing most jurisdictions links the severity of a crime or offense in proportion to the amount of consciousness in the offender’s acts (see King and Carruthers 2012; Lavazza and Sammicheli 2012).

What Are the Implications for the Law?

The acceptance of a neurocognitive epistemology in the law would have huge implications. In fact, law should be conceived as a work-in-progress, and not as a system in its final form. Many lessons can be drawn from monitoring the use of law in practice, from examining its history and from comparing different legal systems in various countries. Nevertheless, a new epistemology for the law would imply for legal scholars to recognize legal principles as a non-static system, but a dynamic system in constant evolution, capable of self-criticism and self-corrections. Even if this system works, it is far from perfect, because it often produces unintended consequences or social harms in the long run. The improvement of a system requires scholars of that field to be theoretically very flexible, to be dedicated in interdisciplinary efforts and constant revisions. Today—but also in past—special- ists are asked to be interdisciplinary open-minded and to get knowledge from other fields. Cognitive neuroscience is one of them. Some insights from our commonsense can be true, some cannot. A socially constructed system we possess cannot be considered the best based only on its practical success, because this could hide mistakes and impede possible improvements. Morse, who claims that neurolaw is “irrational”, invokes “neuro-modesty” for neuroscientists (Morse 2011a). He jus- tifies his claims by mentioning the limits of neuroscientific methods, including low reproducibility of these results and difficulty in interpreting the data. However, over time, with the introduction of more sophisticated methodologies, some of these results are likely to assume impressive significance. While however it is true that a legal system may work well today, we can expect it to succeed decreasingly. Neuroscience exerts a pressure, despite the resistance commonsense manifests. We should never falsify facts to legitimize our norms, because this may lead to socially harmful forms of deception and self-deception. Even folk psychology xxiv Foreword: The Neurocognitive Turn in Law and Its Epistemological Aspects defenders are aware of the risks of folk conceptions (see Legrenzi and Umilta 2014). The relationship between science and law is, even historically, closer than we think (Corbellini 2013, Ch. 9). There is something formally that unite science with law: they are evidence-based. As psychological descriptions in law play a crucial role (think of the degree of defendant’s consciousness in committing a crime for the determination of his culpability), science and law should dialogue fruitfully. Imagine a circumstance in a criminal trial where a judge is called to assess the admissibility of an expert testimony that contains scientific theories contradicting descriptive assumptions in the legal system he represents. This judge would face the hard work of making a choice between a scientific theory and a pseudoscientific theory. This choice seems to be negotiable in common law countries, where law is developed practically through decisions of courts. In civil law countries, forms of self-correction can be possible through organisms predisposed to the interpretation of norms. In sum, over the years neuroscientific results will possibly encourage forces that will lead to substantial legal reforms.

Department of Molecular Medicine Elisabetta Sirgiovanni Sapienza University of Rome Rome, Italy

References

Agosta S, Sartori G (2013) The autobiographical IAT: a review. Front Psychol 13(4):1–12 Andrews K (2012) Do apes read minds? Toward a new folk psychology. The MIT Press, Cambridge, MA Apperly IA (2008) Beyond simulation–theory and theory–theory: why social cognitive neuroscience should use its own concepts to study “theory of mind”. Cognition 107:266–283 Apperly IA (2012) What is “theory of mind”? Concepts, cognitive processes and individual differences. Q J Exp Psychol A 65(5):825–839 Baron-Cohen S, Lombardo M, Tager-Flusberg H (2013) Understanding other minds perspectives from developmental social neuroscience. OUP, Oxford Bechtel W (2007) Reducing psychology while maintaining its autonomy via mechanistic explanation. In: Schouten M, De Jong HL (eds) The matter of the mind: philosophical essays on psychology, neuroscience and reduction. Basil Blackwell, Oxford Bechtel W (2008) Mental mechanisms: philosophical Perspectives on cognitive neuroscience. Routledge, London Bechtel W, Abrahamsen A (2005) Explanation: a mechanistic alternative. Stud Hist Philos Biol Biomed Sci 36:421–441 Bechtel W, Graham G, Abrahamsen A (1998) The life of cognitive science. In: Bechtel W, Graham G (eds) A companion to cognitive science. Basil Blackwell, Oxford Bechtel W, Hamilton A (2007) Reductionism, integration, and the unity of the sciences. In: Kuipers T (ed) Philosophy of science: focal issues. Elsevier, New York Blair JR, Mitchell D, Blair K (2005) The psychopath: emotion and the brain. Blackwell, Malden, MA Bianchi A, Gulotta G, Sartori G (eds) (2009) Manuale di neuroscienze forensi. Giuffre` Editore, Milan Block N (1997) Anti-reductionism slaps back. Phil Perspect 11:107–131 Foreword: The Neurocognitive Turn in Law and Its Epistemological Aspects xxv

Byrne RW, Whiten A (1997) Machiavellian intelligence. In: Whiten A, Byrne RW (eds) Machi- avellian intelligence II: extensions and evaluations. Cambridge University Press, Cambridge, UK Craver CF (2007) Explaining the brain: mechanisms and the mosaic unity of neuroscience. Clarendon Press, Oxford Craver CF, Darden L (2013) In search of mechanisms. The University of Chicago Press, Chicago Churchland PM (1989) A neurocomputational perspective, the nature of mind and the structure of science. The MIT Press, Cambridge, MA Churchland PS (1986) Neurophilosophy, towards a unified understanding of the mind-brain. The MIT Press, Cambridge, MA Churchland PS (2002) Brain-wise: studies in neurophilosophy. The MIT Press, Cambridge, MA Corbellini G (2013) Scienza. Bollati Boringhieri, Turin Corbellini G, Sirgiovanni E (2013) Tutta colpa del cervello: un’introduzione alla neuroetica. Mondadori, Milan Curry O (2006) Who’s afraid of the naturalistic fallacy? Evol Psychol 4:234–247 Davidson D (1980) Mental events. In: Davidson D (ed) Essays on action and events. OUP, Oxford Damasio AR (1994) Descartes’ error: emotion, reason, and the human brain. Vintage, London De Jong LH (2002) Levels of explanation in biological psychology. Philos Psychol 15(4):441–462 Dennett DC (1978) Brainstorms, philosophical essays on mind and psychology. Bradford Books, Montgomery, VT Dennett DC (1987) Intentional stance. The MIT Press, Cambridge, MA Dennett DC (1998) Two contrasts: folk craft versus folk science and belief versus opinion. In: Dennett DC (ed) Brainchildren: essays on designing minds. The MIT Press, Cambridge, MA Dewey J (1938) Logic the theory of inquiry. Holt, Rinehart & Winston, New York Di Giovine O (2014) Neuroscienze (diritto penale). Enciclopedia del Diritto VII:721–734 Fletcher L, Carruthers P (2012) Metacognition and reasoning. Philos Trans R Soc B 367: 1366–1378 Fodor J (1974) Special sciences (Or: The disunity of science as a working hypothesis). Synthese 28:97–115 Fodor J (1987) Psychosemantics: the problem of meaning in the philosophy of mind. The MIT Press, Cambridge, MA Garland B (ed) (2004) Neuroscience and the law. Dana Press, Washington DC Gazzaniga MS (2005) The ethical brain. Dana Press, New York/Washington DC Goodenough OR, Tucker M (2010) Law and cognitive neuroscience. Ann Rev Law Soc Sci 6: 61–92 Greene J, Cohen J (2004) For the law, neuroscience changes nothing and everything. Philos Trans R Soc Lond B 359:1775–1785 Greene J, Haidt J (2002) How (and where) does moral judgment work? Trends Cogn Sci 6(12): 517–523 Haidt J, Bjorklund F, Murphy S (2000) Moral dumbfounding: when intuition finds no reason. http://faculty.virginia.edu/haidtlab/articles/manuscripts/haidt.bjorklund.working-paper.when %20intuition%20finds%20no%20reason.pub603.doc. Accessed 01 Feb 2016 Hempel CG, Oppenheim P (1948) Studies in the logic of explanation. Philos Sci 15:135–175 Hooker CA (1981) Towards a general theory of reduction. Dialogue 20(3):496–529 Hrdy SB (2009) Mothers and others: the evolutionary origins of mutual understanding. Harvard Uni- versity Press, Cambridge Hume D (1739) A treatise to human nature, vols I–II. In: Norton DF, Norton MJ (eds) (2010) Oxford University Press, Oxford Kahneman D (2011) Thinking, fast and slow. FSG, New York King M, Carruthers P (2012) Moral responsibility and consciousness. J Moral Philos 9:200–228 Kim J (1998) Mind in a physical world. The MIT Press, Cambridge, MA Knobe J, Nichols S (2008) Experimental philosophy. Oxford University Press, New York xxvi Foreword: The Neurocognitive Turn in Law and Its Epistemological Aspects

Lavazza A, Sammicheli L (2012) Il delitto del cervello. La mente tra scienza e diritto. Codice Edizioni, Turin Legrenzi P, Umilta C (2014) Perche´ abbiamo bisogno dell’anima. Il Mulino, Bologna Libet B (2004) Mind time: the temporal factor in consciousness. Harvard University Press, Cambridge, MA Machamer PK, Darden L, Craver CF (2000) Thinking about mechanisms. Philos Sci 57:1–25 McCauley RN (2007) Reduction: models of cross-scientific relations and their implications for the psychology-neuroscience interface. In: Thagard P (ed) Handbook of the philosophy of science: philosophy of psychology and cognitive science. Elsevier, Amsterdam McCloskey M, Washburn A, Felch L (1983) Intuitive physics: the straight-down belief and its origin. J Exp Psychol Learn Mem Cogn 9:636–649 McGeer V (2007) The regulative dimension of folk psychology. In: Hutto D, Ratcliffe M (eds) Folk psychology re-assessed. Springer, Dordrecht Moore GE (1903) Principia Ethica. Cambridge University Press, Cambridge Morse SJ (2003) Inevitable mens rea. Harv J Law Public Policy 27(1):51–64 Morse SJ (2004) New neuroscience, old problems. In: Garland B (ed) Neuroscience and the law. Dana Press, Washington DC Morse SJ (2006) Moral and legal responsibility and the new neuroscience. In: Illes J (ed) Neuroethics: defining the issues in theory, practice and policy. Oxford University Press, New York Morse SJ (2007) The non-problem of free will in forensic psychiatry and psychology. Behav Sci Law 25:203–220 Morse SJ (2011a) Avoiding irrational neurolaw exuberance: a plea for neuromodesty. Mercer Law Rev 62:837–859 Morse SJ (2011b) Lost in translation? An essay on law and neuroscience. In: Freeman M (ed) Law and neuroscience, current legal issues 2010, 13, Oxford University Press, Oxford Morse SJ (2013) Common criminal law compatibilism. In: Vincent NA (ed) Neuroscience and legal responsibility. Oxford University Press, Oxford/New York Morse SJ (2015) Criminal law and common sense: an essay on the perils and promise of neuroscience. Public Law and Legal Theory Research Paper Series 99:38–72 Murphy E (2009) Update on Indian Beos Case: accused released on bail. http://lawandbiosciences. wordpress.com/author/emilyrmurphy/. Accessed 01 Feb 2016 Nagel E (1961) The structure of science, problems in the logic of scientific explanation. Harcourt Brace & World Inc, San Diego CA Nichols S (2008) How can psychology contribute to the free will debate? In: Baer J, Kaufman J, Baumeister R (eds) Are we free? OUP, Oxford/New York Nisbett RE, Wilson TD (1977) Telling more than we can know: verbal reports on mental processes. Psychol Rev 84:231–259 Pardo MS, Patterson D (2013) Minds, brains, and law. The conceptual foundations of law and neuroscience. OUP, Oxford Piccinini G, Craver C (2011) Integrating psychology and neuroscience: functional analyses as mechanism sketches. Synthese 183:283–311 Popper K (1965) Conjectures and refutations. Harper Torchbooks, New York Racine E, Waldman S, Rosenberg J, Illes J (2010) Contemporary neuroscience in the media. Soc Sci Med 71:725–733 Ravenscroft I (2010) Folk psychology as a theory. In: Zalta E (ed) Stanford encyclopedia of philosophy. http://plato.stanford.edu/entries/folkpsych-theory/. Accessed 01 Feb 2016 Richerson PJ, Boyd R (2005) Not by genes alone: how culture transformed human evolution. University of Chicago Press, Chicago Roskies AL (2012) How does the neuroscience of decision making bear on our understanding of moral responsibility and free will? Curr Opin Neurobiol 22:1022–1026 Salmon W (1984) Scientific explanation and the causal structure of the world. Princeton Univer- sity Press, Princeton Foreword: The Neurocognitive Turn in Law and Its Epistemological Aspects xxvii

Santosuosso A (ed) (2009) Le neuroscienze e il diritto. Ibis, Pavia Sellars W (1956) Empiricism and the philosophy of mind. Minn Stud Philos Sci 1:253–329 Schaffner KF (1967) Approaches to reduction. Philos Sci 34:137–147 Schaffner KF (1993) Discovery and explanation in biology and medicine. University of Chicago Press, Chicago Shiner RA (2010) Law and its normativity. In: Patterson D (ed) A companion to philosophy of law and legal theory, 2nd edn. Wiley-Blackwell, Malden, MA Simons J (2002) On Dennett. Wadsworth Thomson Learning, Belmont Sirgiovanni E, Corbellini C, Caporale C (2016) A recap on Italian neurolaw: epistemological and ethical issues. Mind Soc. doi:10.1007/s11299-016-0188-1 Smart JJC (2007) The mind/brain identity theory. In: Zalta E (ed) Stanford encyclopedia of philosophy. http://plato.stanford.edu/entries/mind-identity/ Soon CS, Brass M, Heinze HJ, Haynes J-D (2008) Unconscious determinants of free decisions in the human brain. Nat Neurosci 11:543–545 Stich S, Nichols S (2003) Folk psychology. In: Stich S, Warfield TA (eds) The Blackwell guide to philosophy of mind. Basil Blackwell, Oxford Stich S, Ravenscroft I (1992) What is folk psychology? Cognition 50:447–68 Spranger TD (ed) (2012) International neurolaw: a comparative analysis. Springer, Heidelberg Tomasello M (2008) Origins of human communication. The MIT Press, Cambridge, MA Trivers R (2011) The folly of fools: the logic of deceit and self-deception in human life. Basic Books, New York Van Riel R, Van Gulick R (2014) Scientific reduction. In: Zalta E (ed) The Stanford encyclopedia of philosophy. http://plato.stanford.edu/entries/scientific-reduction/ Wegner DM, Wheatley T (1999) Apparent mental causation: sources of the experience of the will. Am Psychol 54:480–491 ThiS is a FM Blank Page Foreword: Neurolaw—A Concept Between Neurosciences and New Theories on Legal

Introduction

Starting from the intellect, in this short paper we will try to give an account of the different research assumptions that, reversing the traditional terms of the relationship between law and human culture, investigate the moment in human history when it has arisen a type of social relationship that can be called legal. Taking the moves on what Francesco Romeo writes,1 it will be described how “the strange psychic mechanism that humans like to represent as their history, a process of civilization, punctuated by continual improvements and achievements”, ﬁnd its act “just when man participates, both executioner and judge the perpetrators, at the social life of the group”. In the writing of the legal philosopher, in fact, it blows gently the idea that human sociality reposes on a ﬁctio which vanished, would cease, perhaps, culture itself: “we share the successes and the gains, individualizing the guilts, the responsibilities and with them also the losses. In this frame, the right stands as the most obvious manifestation of man’s rational, if not outright the tout court rationalization”.2 Taking up the idea, already expounded by Semir Zeki,3 “neuroscience has” — indeed—“explored every experimental path in order to understand the brain: from neurochemistry to pharmacology, from physiology to informatics, from mathe- matics to chaos theory. But I do know that there is a single large basin which neuroscience have never drawn, namely the one concerning the products of the brain. For products of the brain I mean art, literature, music, jurisprudence: that is everything the human brain produces. You can fully understand the brain, observ- ing those productions, and it is for this reason that I became interested in art”.

1Romeo (1990, 2012). 2Romeo (2012). 3Zeki (2008) and Zeki and Goodenough (2004).

xxix xxx Foreword: Neurolaw—A Concept Between Neurosciences and New Theories on Legal

By applying for assonance this speech to our research, a field of study that cognitive science can no longer put off is the legality and, considering the importance of social interaction for a highly social species such as human, much of the work seems unfinished. Thus, we are firmly convinced that an adequate explanation of the evolution of sociality and, more generally, of the human culture, will not happen until we include the law, legality, as explanatory part. Asking yourself these questions first means, therefore, to consider the idea of studying the origin of some aspects of stable and enduring behavior of our species, putting the man himself in the middle of the scientific explanation, all the while analyzing the individuality and sociability that distinguishes it. What we seek to do with the researches that join together law and neurosciences, is just to try to understand, moving from the historical excursus of the human being, the possibility of the existence of a genetic or biological tendency connected to the legality; wondering, also, if and in what it differs from sociability, because it branches in the law and, in a sort of circle, if and what role this has played in the evolution of human groups.4 Most of the researches so far conducted, while addressing the relationship between law and evolution or genetics, have found their way by making use of an open concept of law, without clear boundaries between this, ethics, politics and other aspects social beings. The question of the origin of law as is emerging here, therefore, must, initially, be able to define the scope and the object of its search: in the first place, a question on law and not on sociability, despite drawing a net line border, is nearly impossible in the current state of the discussions.5 Secondly, we want to detach from the theory according to which the question of the origin of the law is different, for the jurist, from the most usual question about the foundation of the law itself. My point of view is that, despite the foundational courses are actually many and most of them take root outside the law (finding their own fertilizer in ethics, in transcendence, into the economy, etc.) it is not correct to talk of a split between the foundation and the origin. Thus, what we want to try is to sketch an interpretation concerning the origin of the law in the real sense, as well as an explanation of what this has been for the history of human societies. To the right, in fact, it is all the more remarkable that only in our time we are addressing the question of its origin and evolution from a biological point of view, and not indirectly as an evolution of sociality or morality. Wanting to reverse the trend so far carried out by the various strands of research, what we want to be solved

4Faralli (2005), Farisco (2012), Fasso` (1966), Onians (1988), Lehrer (2008), and Bresadola et al. (2008). 5The law, intended as a rule of action heteronomous and authoritative, is present (in varying forms) in every human society or non-family group and this uniform distribution in all human societies suggests a necessary link with human culture, particularly in the construction of expanded social groups. Foreword: Neurolaw—A Concept Between Neurosciences and New Theories on Legal xxxi is why, during the human history, at some point have arisen social relations characterized by legality and what role they have played in human cultural evolution and in the structuring of the current society. The explanation for this step is subtle and involves many concepts, but may act as an engine in explaining whether the culture begins with just the right, if all other manifestations of cultural evolution of Homo habilis are after this and if, really place themselves at its service. We might even say that this is the system that allowed us to survive and evolve, and that it probably would not have been different. The fundamental question in the margins of these premises is also to understand if neuroscience going to make it strong enough to produce the results: it is clear that we will have the answer to that question only in time. But skepticism of the conservatives seems to be caused by skepticism about the scientific method itself and this is hardly acceptable. This, as it may produce errors, it is still the best strategy of knowledge we currently possess. However, neuroscience have already presented significant results in the legal field by producing a big echo of reactions and some6 argue that in many cases the law is prepared to accommodate them. However, this is not true in every case. Membership of the right to a frame of the implications of neuroscience has indeed no small extent, as many consider that the law will stand as it is without major shocks. It could be possible to respond to the detractors of this second theory that the law is also an enterprise of research and work, and not a system that seems to have found its final form. The persistence of a discouraging legal nihilism, the lack of a direction in which to go, and the lack of a compass needle, are the elements that have characterized the essence of the right in recent years. Yet, in spite of the law was found to be a prisoner of multi-directional theories, what really could be considered annihilated it is not the discipline itself, but the way to think about this, the approach that has remained until now. The same was true, for the opposite, for the evolution: almost always the wrong application of evolutionary theory has been accompanied with an elegant over- flight of the scientific issues that were supposed to legitimize the use of the theories themselves, completely ignoring the exposure of scientific assumptions, mostly held “tedious”, and in fact, failing systematically what was explained in the first place. Well, it is possible that the evolutionist front and the law, joining, bring together lifeblood to each other, finding a balanced explanation that focuses on the individual.

6Greene and Cohen (2004), Feldman (2009), Freeman and Goodenough (2009), Garland (2004), Goodenough and Trucker (2010), Lynch and Laursen (2009), Santosuosso (2009), Spranger (2012), and Uttal (2009). xxxii Foreword: Neurolaw—A Concept Between Neurosciences and New Theories on Legal

In this regard there are those invoking the return to a “neuro-modesty”,7 accus- ing the union neuroscience-law of irrationality, citing the limits that the neuroscientific methodologies take with them. However, over time, with the improvement of methods, some of these results assume significance impressive: the theories could be validated or could, somehow, be re-thought but, in any case, the novelty of their proposal will increase the fertility of the same field of research, broadening the circle of hypotheses. Therefore, the one that we want to bring forward is not a working hypothesis compact and static, but a veil of tiny hypothesis, a dust of atoms in search of what constitutes the last substance of the multiplicity of legal. Consequently, we shall face this, without hoping to find anything more than what we are able to bring it.

A Path of Evolutionary and Neuroscientiﬁc Explanation of Human Sociality and the Origin of the Legal Relationship

“We live in a marvellous age” writes Sebastian Seung in its Connectome;8 “Neuro- scientists have explored the enchanted branches, trying to conquer the jungle of the mind, they heard the sounds of the brain, namely the electrical signals; They revealed the fantastic forms with photographs and meticulous drawings of neurons”. Any individual who is dealing with “the Universe of the brain” has to deal with the same awe and, probably, more is the knowledge you have of this, more intense is the astonishment. We are faced with a science that has shed its cloak, a science that looks shyly at the root of his being, a new science that uses the powerful resources of biology and other sciences to examine the great mysteries of life, even those. From the new science of mind we do not get, then, only the keys to ourselves, but also a new perspective of the human race fell in the context of biological evolution. It is tempting to believe that the gradual accumulation of knowledge on humans, provided by neurobiology of cognitive sciences can help us not only to understand the ﬁnite nature of the human condition and have pity on it, but also to understand the sociality, representing it a viaticum to administer human events. For some time, human beings are in a new phase of their evolution, full of thought, in which the mind and the brain can be both servants and masters of their bodies and of the societies they represent. Certainly, there are risks when minds and brains that originated from nature begin to do the sorcerer’s apprentice, to inﬂuence the nature itself; but also not take up the challenge could involve some risk.9

7Morse (2004). 8Seung (2013). 9Damasio (1994), Churchland (1986, 2002), Craver (2007), Craver and Darden (2013), Gallese et al. (2002a, 2002b), Ramachandran (2012), Rizzolatti (2008), and Swaab (2014). Foreword: Neurolaw—A Concept Between Neurosciences and New Theories on Legal xxxiii

By the way it comes to mind the figure of Alcibiades when, finding himself in trouble, seek help in Socrates to discover what constitutes the art of governing men. The need to take care of the self emerges, in the text, with all its urgency, not so much when Alcibiades expresses his political plans, but when he realizes to ignore the nature of the object that he wants to take care. He wants to rule the city, but does not know how and what is the purpose of the exercise of power, namely the well- being and the harmony of the Athenians. Thus, he must begin to heal himself, if he wants to know the object of good government, and to do that, firstly, he must find out what is the nature of the self, through an investigation into the nature of man that involves the question “what constitutes the point towards which it must be directed the reflective and reflected activity, that which, starting from the individual, on his back”.10

What Do You Look for in These Places Where Your Species Was Unknown?11

What, then, characterizes us as humans? Despite Terence12 said “I am human, and nothing of that which is human is alien to me”, many factors in our evolution seem to still remain unexplained. Darwin believed in the emergency step of the human mind and of the higher faculties of man in the course of the evolution. We have become “human” and “modern” through an endless series of small, imperceptible, steps. However, the co-discoverer of natural selection, Alfred Wallace, considered this perspective too materialistic; it did not agree that natural selection could not explain phenomena typically human as the source of moral and religious sense: the human mind had to be kind at once, thanks to a sudden failure of development. And time seems to have given him reason. One hundred thousand years ago, at least four species of human inhabited the Earth. Today, on the contrary, on Earth there is only one species of human: us. Homo sapiens. And we are the lords of the planet.13 As Michael Gazzaniga rightly said, “On The Tree of evolution we, humans, are sitting at the end of our lonely branch. Chimpanzees have a branch just for them to check which one of the bonobos and we are united by a common ancestor. We share with other living organisms the same roots. (...). Our cellular processes depend on the same biology and we are subject to the same rules of physics and chemistry. We are all creatures made of carbon. However, each species is unique, so are we. Each

10Focault (1982). 11Leopardi (1827). 12Homo sum, humani nihil a me alienum puto (163 a.C.). 13Harari (2015) and Sacco (2007). xxxiv Foreword: Neurolaw—A Concept Between Neurosciences and New Theories on Legal species has responded to the problem of survival with a different solution, going to fill a different ecological niche”.14 On a philosophical level, it is a very interesting scenario: we are children of a long sequence of expansions and demographic contractions, of the movement of small groups at the mercy of changing environmental conditions and sporadic innovations. It opens as a new way to reconstruct the plural human natural history, in which the cornerstones are taken from physical and spatial data, and not just from those temporal. Whatever happened, to find that we got here after a sequence of contingent bifurcations, and that therefore other coexisting were equally probable, it makes our earthly more egalitarian and should lead us to a healthy sobriety, to an “evolutionary humility”. Even the same molecular data confirm that, in at least one phase of our evolutionary history, we found ourselves very few and we are allowed to borrow the words of Giacomo Leopardi, in the Dialogue of Nature and an Ice- lander15 in which the first one, indifferent stepmother, apostrophe the second one: You maybe imagined that the world was made because of you? [...] If I happen to pay off your whole species, I do not notice it.

The Behavioral Modernity

Our big brain is another feature, along with bipedism, which binds us to our ancestors. However, the cognitive universe that distinguished them is far away from ours. During evolution our brain has reached a volume, relative to body mass, at least three times greater than that of other primates. As a result of such changes, we asked ourselves the question whether it is possible that, at the time, three kilograms (the weight of the brain) had been a defect determining the evolution of the human species. But it was not only a quantitative change: the younger parts of the brain, belong to the so-called “neocortex”, were added (with a no mechanical way) to the most primitive parts (limbic system, cerebellum, brainstem), creating a very complex anatomical architecture in which, sometimes, the coordination of the “superior” parties is mediated by the structures present in the older parts. Compared to our ancestors, areas of the brain in the genus Homo have been modiﬁed not quantitative but qualitative: there was, in fact, the appearance of any new structures that were not already present in apes but it was a change in the organization and the connection between the various areas. In addition to size, the brain has evolved thanks to its conformation. In this regard, the neuroscientist Giacomo Rizzolatti suggests watching at the many

14Gazzaniga (2005). 15Leopardi (1827). Foreword: Neurolaw—A Concept Between Neurosciences and New Theories on Legal xxxv convolutions that characterize our brain. In fact, it is thought that, evolutionarily, this was the crucial step that allowed man to reach the present stage. It has not only been an increase in the weight of the brain but also a clear development of brain convolutions (feature that peaked in Homo sapiens development) and an extension of the growth phase (longer than in any other form of Homo), characteristics that have impacted on the expansion and reorganization of the brain, the ability to learn, social organization and language. With what is called by paleoanthropologists Paleolithic revolution, in fact, succeeded something extraordinary; that was the moment in which we can traced the birth of the modern human mind, with the entire faculty of equipment currently in use, called by scholars “the great leap forward”or“Behavioral Modernity”of human evolution. The phenomenology of Eurasian Homo sapiens ﬁndings indicate, in this regard, around the period (roughly) from 45,000 to 34,000 years ago, in what many consider a true “adaptive revolution” emerge unusual cognitive abilities, immeasur- able compared to those of other primates, which shape the form that now characterizes us as men. That time we became human has happened, therefore, something normal and unique at the same time. On a side branch to the biodiversity of the empire outskirts began a new experiment of life and knowledge, a contingency that hardly could be repeated a second time. The brain, more than a matched organ, thus it looks like a patchwork of reorganizations, a versatile organ full of “re-adjustments”, with new areas and maps constructed on the old, converted to new functions, renovated. The human intelligence structures (like those of locomotion) would, therefore, the result of a unique evolutionary drift, the outcome of a sequence of contingent and irreversible events, an emergency late and sudden triggered by a small change. We are therefore faced with an anthropological revolution, whereby man can be considered a neuro-functional object, the result of unique genetic evolution in history and whose experience cannot be expressed without his tale.

The Social Synapses

In our conscience of human beings, we experience ourselves as individuals. Although we think of ourselves as beings who have a number of social relations, the operative term still remains me: a part of our experience of the world has been built around the notion of the isolated self, and it is from this perspective that Western science has explored the brain. The same Western philosophy has always conceived the thinker as a single entity, inserted in a human community, seeking technical and abstract answers instead of looking closely at the experience and human interaction. The same happened in the ﬁelds of neurobiology and neuroscience, where the brain was studied by resorting to the brain scanning equipment and going often to neglect xxxvi Foreword: Neurolaw—A Concept Between Neurosciences and New Theories on Legal the fundamental context in which the brain was destined to grow: the social interaction. Indeed, even if we are loyal to the idea of individuality, we live with the paradox of being constantly engaged in social and we are beginning to understand not only our biological systems reports are closely interlinked, but that even our evolution stemmed from being social creatures. Social cognition, therefore, is thought to be one of the most important keys in the context of the evolution of primate brains, representing just the ﬂywheel that has operated. The social synapse16 is, therefore, the space that separates us. It is also the medium that binds us together into larger bodies such as the family, groups, societies, and the human species as a whole and does. Interconnected individuals thus become more than the sum of their parts: the more individual organisms are inter-correlated, especially as a large group begins to behave as a single individual, as had already been claimed by Freud.

The Legal Relationship in an Evolutionary Perspective

We arrive thus to the purpose of this writing, addressing, in terms of biological and cultural evolution, the subject of the origin of the right, still on the edge of the same neuro-juridical deepening. When was born on legal phenomenon and, above all, why? Not being able to give an account here of the different sectors of research that are proﬁled over the years, just think that most of the hypotheses, evolutionist or anthropologist, share a common sense approach that places ethics and categories of economy as antecedents, empirically and logically, to legal categories, thus reducing the legal phenomenon, in the last ratio, to an ethic or economic expli- cation or manifestation by which the human culture has expressed. The argument that we want to support here, by contrast, it is of the adverse opinion. Starting from the need of a paradigm shift, it seems reasonable to argue that all operational forms, to assess the problem of the juridical phenomenon from a perspective that could be called a naturalist, should ask themselves an initial question: how can be possible the right? Or, in other words, what is the function of law in the context of human existence? The traditional neo-Darwinian interpretation holds that the possession of behavioral norms has been an adaptive advantage. Thus, the original question about why humans create the law is now transformed into what has been (or is) the selective or adaptive advantage of the same. If we are unable to answer this question, in my opinion, the presence of the right in the human existence will continue to be an enigma open to the most diverse hypotheses.

16Gazzaniga (2009), Dworkin (1967, 2000), and Dennett (2006). Foreword: Neurolaw—A Concept Between Neurosciences and New Theories on Legal xxxvii

The fundamental question is the following: accepted the interpretation, typically Darwinian, so owning a network of rules of conduct would constitute, for the man, a milestone selective adaptation to the outside world, a real adaptive advantage, we need to go a step further and try to understand whether it is possible, in practice, to see how and why human progress, in evolutionary terms, it is an advantage as a result of the gradual development of a system (first grade) of prescriptive requirements certain behaviors; that is, through the gradual development of real primordial standards. Moreover, if we accept the thesis that the right can be considered a real social and human adaptive strategy, and that its deeper meaning and, therefore, its origin, reside in the need to compete successfully in a social complex life, and if so, ultimately, we are willing to accept that it is aimed at solving different problems related to the complexity of social life, it would be almost absurd to want to escape to attempt to understand the solution of specific problems which it is, in fact, preordained. It would therefore be sought in the law the key to understanding our humanization. Returning to our field of study, the union, or the proposed joint study of law with evolutionism or cognitive science, crowds quickly the mind of disturbing pres- ences, all concerning the possible legislation proposed hermeneutical and founded institutes settings of what nature offers immediately to our eyes: the inequality and cruelty of the inter-relationship, individual selfishness, the new edition in evolutionary hypothesis of the Hobbes’bellum omnia contra omnes and social institutions, including law, as a remedy to state of nature. All these ghosts that inhabit the past of social and legal applications of evolution, they share a point that spoils themselves as descriptive and explanatory theories of social reality and legal and then, consequently, as a scientific theory. They want to explain human sociability as if it were a fact belongs to the nature and derivable from it immediately, so that the entire human culture becomes necessitated a consequence of a series of events. However, what all do not explain has the consequence that they themselves would be drawn from descriptions: the normativity of the conclusions. Scientific theories are not used to a mere descriptive level, but always to bring technical and regulatory level of the best action to take in view of achieving a particular purpose, be it political or social. Until the normativity, and the presence of this particular type of practical reasoning in humans, it will not be explained in evolutionarily and biologically terms, no evolutionary theory of society, or of the legal system, and in general of the human culture, could be said to be true. A new interpretation of the law, being fulfilled as a discussion of the nomological difference, is not, therefore, be fully exhausted or in the knowledge that the law is now, nor in that of every right that there has been, but it takes place in the issue of sense (as a research-creation) on the presence of each in its existence with others. xxxviii Foreword: Neurolaw—A Concept Between Neurosciences and New Theories on Legal

It is easy to see that the individual who is part of a crowd differs from the individual in isolation, but to discover the causes of this difference is more difficult.17 In a multitude disappear individual acquisitions and personality specific to each. The group’s assets are unconscious to take the leading place, the hetero- geneous into the homogeneous blends. That is how it would be to form the average of the individual character of a community. Assonance, we can say, at this stage of our work, that the role of law in human cooperation within the company is the same as that which operates in the so-called major transition: not to guarantee the well-being of individuals but of the implementation of the cooperation, culture and society itself. However, the biggest challenge is trying to understand these transitions in Darwinian terms. As we saw earlier, the latest major transition is, in sociobiological theory, human culture, which, according to socio-biology, the right would be a rather recent development. Along this road, on the assumption that our cognitive architecture integrated influence decisively our social and moral behavior, and that the standards and human values are born at an adaptive process in response to the experience of everyday life, a kind of layering standards of conduct, progressively developed based on the benefits obtained as a result of practices, raised.

The Knowledge of the Law

The law, then, are we, because we make the laws. Some experiments18 suggest that in the brain of the child, and therefore in ours, there is a specific conceptual framework of spontaneous moral predispositions (a corpus of moral sentiments) that might indicate the source of a common ethics of the human species. Thus, if the ethical and legal choice is based on the distribution of reasoning and moral emotions and feelings produced by the brain, it cannot consider it totally independent from the constitution and the function of this “organ”, acquired in the evolutionary history of our specie. We are, therefore, facing the primary role of the social life, the one capable of directing the innate human component towards certain specific domains. One can imagine various evolutionary scenarios in which to consider a scheme of this kind can result in significant adaptive advantages. But within this multitude of hypotheses there is one that should be considered as the main: the right conceived as part of social and individual development. The “rule of law” can very well understood, within this model, as a solution, social and cultural to the problems related to the adaptive capacity and the need to predict the actions of the group members and their consequences.

17Le Bon (1895), Pinker (2003), and Cozolino (2010). 18Changeux (2003) and Bechtel (2008). Foreword: Neurolaw—A Concept Between Neurosciences and New Theories on Legal xxxix

The law, therefore, can be read as a specific psychic experience. Precisely, the law is composed of two elements: specific emotion, which may be passive (such as feeling) or active (as will). The predominance of the emotional component of the standard and the relationship between this and the cognitive component, intuited by Petrazhicki as indeed, in another form, since Freud, are now confirmed in neuro- psychological research. Those who work in law, therefore, can act in harmony with human nature or against it,butitismorelikelythatyoucangeteffective solutions modifying the environment where human nature has developed rather than chasing the impossible goal of altering nature through these tools. A common mistake in the jusnaturalistic interpretations of the law, whether they are of transcendent or Darwinian origin, is the conception that human nature contains what we might call the final product of the law. Human nature, by contrast, imposes what we might call the rules of the game but not the final result. In other words, it is the right that must serve human nature and not the opposite.

Conclusions

“The law cannot ask for better justification of the deepest instincts of man”.19 It is thesis of general theory of law recovered, more recently, in terms sugges- tively universal, according to which the success or failure of humanity depends largely on the way the institutions that govern public life are able to include the perspective of human nature in principles, methods and laws. Understanding the nature of man, its limited rationality his feelings and his emotions seems to be the best way to formulate an institutional and normative design that, by analyzing human finitude, allowing everyone to live in search of a common humanity. The theme introduced, in short, is the existence of a common human nature: the concept is obviously central to any discourse that intends to deal with the social sciences not only in terms classifiers, but also taking the risk to advance new research hypothesis and interpretation. In this perspective, the cognitive sciences offer an extraordinary range of knowledge and stimuli for a discipline such as law because they give renewed consideration to the architecture and the morphology of the mind and of the substrate of it able to be placed at the foundation of the investigation on the behavior that this discipline interested. When our hominid ancestors faced the adaptative problems associated with the complexity of the social life, the selection pressures encouraged the cognitive organs capable of administering the universe of norms and values.

19Holmes (1897). xl Foreword: Neurolaw—A Concept Between Neurosciences and New Theories on Legal

Accepted the interpretation for which own a network of rules of conduct would constitute, for the man, a milestone into the selective adaptation, a truly adaptive advantage was necessary to go a step further and see how and why human progress, in evolutionary terms, it is an advantage as a result of the gradual development of a system prescriptive requirements speciﬁed acts. Analyzing the role of the evolution, rather wandering, of that prodigious organ that is the brain, we had put in place the revision of the setting conceptual origin of the legal relationship designed so far. Starting from the new cognitive course, in fact, the new knowledge is acquired, and the science progresses, through a process of conﬂict resolution. The British intellectual of the twentieth century, Isaiah Berlin, who declared himself in favour of a separation between science and the humanities, traces the origins of this modern separation in Giambattista Vico. Vico argued that there is a very small overlap between the study of the real truth of science and the study of human concerns. While the mathematical and physical sciences require a precise logic, very powerful in the study and analysis of “external nature”, Vico was convinced that the study of human behavior required a very different type of knowledge, a knowledge from the inside, which he called our “second nature”, internal.20 The separatist approach which saw the deployment of opposing the natural sciences to the social sciences, after dominating for decades, has been brought to the fore by Charles Percy Snow, physical become a novelist, in 1959, at a conference entitled “The Two Cultures”, where he described the gap of mutual misunderstanding and hostility among scientists, interested in the nature of the universe, and the human- ists, attentive to the nature of human experience. An approach to unity between biology and humanities was, most recently, advocated by Wilson, contemplating the possibility of such a unit based on consilience, a set of dialogues between disciplines to build a bridge and factual methodological broader. I wish that the sciences and the humanities became great friends, recognizing a deep kinship and a necessary link in search of dignity and human behaviour keeping their goals, ineluctable different and logically separated, at their joint projects and services learning from each other. What is hoped, therefore, it is a lounge where subjects also different from each other can communicate and erect the discussion no longer just a mere intellectual exercise but a real rethinking epistemological human.21 Wielding words from the emotional resonance, we try to read the normativity and the presence of this particular type of practical reasoning in man, in evolutionary and biological terms, starting from the normativity of the conclusions. This setting has an important consequence: if we admit that law and human nature are both the source of the relational characteristics, then the realization of the right should be designed as an intention, a technique to implement determined practical programs related to behavior and interaction between individuals.

20Vico (1931). 21Gould (2002). Foreword: Neurolaw—A Concept Between Neurosciences and New Theories on Legal xli

It is allowed to borrow the words of Darwin “many of the views that have been exposed are speculative, and no doubt some will prove wrong, but in any case I have referred to the reasons which led me to think in one way rather than another ... false facts are highly injurious to the progress of science, they would often tolerate for long, but the way you see false, if it is not supported by any evidence, bears little harm, because each one will take a salutary pleasure in proving the falsity”.22

Law Department University of Rome “Tor Vergata” Rome, Italy

References

Bechtel W (2008) Mental mechanisms: philosophical perspectives on cognitive neuroscience. Routledge, London Bresadola et al (2008) Neuroscienze Controverse. Da Aristotele alla moderna scienza del linguaggio. Bollati Boringhieri, Torino Changeux JP (2003) L’homme de verite. Odil Jacob, Paris Churchland PS (1986) Neurophilosophy, towards a unified understanding of the mind-brain. The MIT Press, Cambridge, MA Churchland PS (2002) Brain-wise: studies in neurophilosophy. The MIT Press, Cambridge, MA Cozolino L (2010) The neuroscience of human relationships: attachment and developing social brain, 2nd edn. WW Norton & Co., New York Craver C (2007) Explaining the brain. Clarendon Press, Oxford Craver C, Darden L (2013) In search of mechanism. University of Chicago Press, Chicago Damasio AR (1994) Descartes’ error: emotion, reason, and the human brain. Vintage, London Darwin C (1871) The descent of man, and selection in relation to sex. John Murray, London Dennett D (2006) Breaking the spell: religion as a natural phenomenon. Penguin Group, USA Dworkin R (1967) The model of rules I, in Taking rights seriously. Duckworth, London Dworkin R (2000) Sovereign virtue: the theory and practice of equality. Harvard University Press, Harvard Faralli C (2005) La filosofia del diritto contemporanea. Editori Laterza, Bari Farisco M (2012) Filosofia delle neuroscienze. Edizioni Messaggero, Padova Fasso` G (1966) Storia della filosofia del diritto, vol I (Antichita e Medioevo), II (L’eta moderna), III (Ottocento e Novecento). Il Mulino, Bologna Feldman R (2009) The role of science in law. Oxford University Press, Oxford Freeman M, Goodenough O (2009) Law, mind and brain. Ashgate, London Focault M (1982) Critical inquiry. University of Chicago, Chicago Gallese et al (2002a) The mirror matching system: a shared manifold for intersubjectivity. Behav Brain Sci 25:35–36 Gallese et al (2002b) Hearing sounds, understanding actions: action representation in mirror neurons. Science 297:846–848 Garland B (ed) (2004) Neuroscience and the law. Dana Press, Washington DC Gazzaniga MS (2005) The ethical brain. Dana Press, New York/Washington DC Gazzaniga MS (2009) Human: the science behind what makes us unique. Harper Perennial, USA

22Darwin (1871). xlii Foreword: Neurolaw—A Concept Between Neurosciences and New Theories on Legal

Goodenough OR, Tucker M (2010) Law and cognitive neuroscience. Ann Rev Law Soc Sci 6: 61–92 Greene J, Cohen J (2004) For the law, neuroscience changes nothing and everything. Philos Trans R Soc Lond B 359:1775–1785 Gould SJ (2002) The structure of evolutionary theory. Belknap Press of Harvard University Press, Cambridge, MA Harari YN (2015) A brief history of humankind. Harper, New York Holmes O (1897) The path of the law. Harv Law Rev 10 Le Bon G (1895) Psychologie des Foules. Presses universitaires de France, Collection Quadrige, Paris Lehrer J (2008) Proust was a neuroscientist. Mariner Books, San Diego Leopardi G (1827) Operette morali. Recanati Lynch Z, Laursen B (2009) The neuro revolution. How brain science is changing our world. St. Martin’s Press, New York Morse SJ (2004) New neuroscience, old problems. In: Garland B (ed) Neuroscience and the law. Dana Press, Washington DC Onians RB (1988) The origins of European thought: about the body, the mind, the soul and the fate. Cambridge University Press, Cambridge Pinker S (2003) The blank slate. Penguin Book, USA Ramachandran VS (2012) The tell-tale brain. W.W. Norton and Co., New York Rizzolatti G (2008) Mirrors in the brain: how our minds share actions, emotions, and experience. Oxford University Press, Oxford Romeo F (1990) Analogia: per un concetto relazionale di verita nel diritto. Cedam, Padova Romeo F (2012) Antropologia giuridica: un percorso evoluzionista verso l’origine della relazione giuridica. Giappichelli Editore, Torino Sacco R (2007) Antropologia giuridica. Il Mulino, Bologna Santosuosso A (2009) Le neuroscienze e il diritto. Ibis, Como-Pavia Seung S (2013) Connectome: how the brain’s wiring makes us who we are. Mariner Books, London Swaab D (2014) We are our brains: a neurobiography of the brain from the womb to Alzheimer’s. Spiegel and Grau, New York Spranger TD (ed) (2012) International neurolaw: a comparative analysis. Springer, Heidelberg Uttal W (2009) Neuroscience in the courtroom. Lawyers & Judges Publishing Company, Inc., Tucson Vico G (1931) Scienza nuova, Scrittori d’Italia 135. Laterza, Bari Zeki S, Goodenough O (2004) Law and the brain. Oxford University press, Oxford Zeki S (2008) Splendours and miseries of the brain. Blackwell, Oxford Preface

Except for errors or omissions, this book has been the ﬁrst attempt in Italy to establish legal bases on an assumption of neurolaw. As known, this new discipline, afferent to the big sector of so-called “cognitive science”, has already widespread weather in the world, especially in the common law countries, where, however, most of the essays seemed to give priority to aspects dedicated to criminal law and to criminal procedure law. In fact, if you pay membership to the neuro-phenomenological thesis, the holistic approach cannot ignore signs of other branches of the equally important rights such as the private and commercial law, the constitutional law and the administrative law. However, because it is not possible in the era of globalization to separate legal analysis from other sciences, which is formerly referred to as social, and especially from the psychological-legal industry, it was considered necessary to supplement in this respect the volume development. To this end, the English version is enriched by a preface split into two parts (edited by Elisabetta Sirgiovanni—PhD and researcher in Sapienza University of Rome—and Valentina D’Arrigo—PhD in Tor Vergata University of Rome), which investigates precisely the issues related to neuroethics and neurophilosophy and philosophy of law. We must point out that the purpose of this collective work is primarily to open some reﬂections, not to give certainties, and we would like to suggest a hypothesis of general postmodern theory of law. In fact, it is the belief of all the authors that for its importance and breadth of vision, the neurosciences represent a real new epistemological way that is probably destined to change profoundly the same fundamental legal concepts.

Rome, Italy Eugenio Picozza

xliii ThiS is a FM Blank Page Contents

1 Neuroscience, Science of Nature and Social Sciences ...... 1 Eugenio Picozza 2 Neuro Law: Validity and Limits of a Neuroscientiﬁc Approach to Problems Relating to Law and Justice ...... 21 Eugenio Picozza 3 General Issues ...... 41 Vera Cuzzocrea 4 Problems About Enforcement ...... 79 Eugenio Picozza 5 Public Law and Private Law Issues ...... 119 Eugenio Picozza 6 Criminal Law Issues ...... 167 David Terracina 7 Criminal Procedure Issues ...... 213 Laura Capraro

xlv