Neurolaw

http://ssrn.com/abstract=1472245

Blaming the Brain

Steven K. Erickson
University of Missouri School of Law


September 12, 2009


Abstract:
Criminal law scholarship has recently become absorbed

with the ideas of neuroscience in the emerging field of

neurolaw. This mixture of cognitive neuroscience and

law suggests that long established conceptions of

human agency and responsibility are fundamentally

at odds with the findings of science. Using

sophisticated technology, cognitive neuroscience

claims to be upon the threshold of unraveling the

mysteries of the mind by elucidating the mechanical

nature of the brain. Despite the limitations of that

technology, neurolaw supporters eagerly suggest that

those revelations entail that an inevitable and radical

overhaul of our criminal justice system is soon at hand.

What that enthusiasm hides, however, is a deeper ambition

among those who desire an end to distributive punishment

based on desert in favor of a prediction model heavily

influenced by the behavioral sciences.

That model rests squarely on the presumption that

science should craft crime policy at the expense of the

authority of common intuitions of justice But that exchange

has profound implications for how the law views

criminal conduct and responsibility - and how it should be

sanctioned under the law. Neurolaw promises a more humane

and just criminal justice system, yet there is ample reason to

believe otherwise.

Keywords: neurolaw, cogntive neuroscience, responsibility, intuitions of justice, psychology, criminal law

Working Paper Series