February 26, 2017

Professional Paradigms New and Old (Part 6): Law Beyond Blame

rhodes(At the end of last week’s post, I promised a follow up this week. We’ll get to that next week. In the meantime, the following was just too pertinent to pass up.)

In several posts over the past couple years, we’ve looked at how technology acts as a disruptive innovator, shifting paradigms in the legal profession. I recently came across another disruptor: the biology of the brain. Its implications reach much further than, let’s say, Rocket Lawyer.

David Eagleman is his own weather system. Here’s his website — talk about creds. His short bio is “a neuroscientist at Baylor College of Medicine, where he directs the Laboratory for Perception and Action, and the Initiative on Neuroscience and the Law.” The latter’s website posts news about “neulaw,” and includes CLE offerings. Among other things, neulaw tackles a bastion of legal theory: the notion of culpability.

Incognito_Cover_EaglemanEagleman’s book Incognito: The Secret Lives of the Brain contains a long chapter entitled “Why Blameworthiness Is The Wrong Question.” It begins with the story of Charles Whitman, who climbed a tower at the University of Texas in August 1966 and started shooting, leaving 13 people dead and 38 wounded before being killed himself. He left a suicide note that included the following:

“I do not understand myself these days. I am supposed to be an average reasonable and intelligent young man. However, lately (I cannot recall when it started) I have been a victim of many unusual and irrational thoughts… If my life insurance policy is valid please pay off my debts… donate the rest to a mental health foundation. Maybe research can prevent further tragedies of this type.”

Whitman’s brain was examined and a tumor was found in the sector that regulates fear and aggression. Psychologists have known since the late 1800s that impairment in this area results in violence and social disturbance. Against this backdrop, Eagleman opens his discussion of blameworthiness with some good questions:

Does this discovery of Whitman’s brain tumor modify your feelings about his senseless murdering? If Whitman had survived that day, would it adjust the sentencing you would consider appropriate for him? Does the tumor change the degree to which you consider it “his fault”?

On the other hand, wouldn’t it be dangerous to conclude that people with a tumor are somehow free of guilt, or that they should be let off the hook for their crimes?

The man on the tower with the mass in his brain gets us right into the heart of the question of blameworthiness. To put it in the legal argot: was he culpable?

The law has accommodated impaired states of mind for a long time, but Eagleman’s analysis takes the issue much further, all the way to the core issue of free will, as currently understood not by moral and ethical theorists but by brain science. Incognito is an extended examination of just how much brain activity occurs beneath the level of conscious detection, in both “normal” and impaired persons. Consider these excerpts:

[T]he legal system rests on the assumption that we do have free will — and we are judged based on this perceived freedom.

As far as the legal system sees it, humans . . . use conscious deliberation when deciding how to act. We make our own decisions.

Historically, clinicians and lawyers have agreed on an intuitive distinction between neurological disorders (“brain problems”) and psychiatric disorders (“mind problems”).

The more we discover about the circuitry of the brain, the more the answers . . . move toward the details of the biology. The shift from blame to science reflects our modern understanding that our perceptions and behaviors are controlled by inaccessible [neurological] subroutines that can be easily perturbed.

[A] slight change in the balance of brain chemicals can cause large changes in behavior. The behavior of the patient cannot be separated from his biology.

Think about that for a moment — as a lawyer, and as a human being. The idea that our biology controls our behavior — not our state of mind or conscious decision-making — is repugnant not only to the law, but to our everyday perceptions of free will and responsibility. Tamper with free will, and a whole lot of paradigms — not just legal notions of culpability — come crashing down.

Eagleman’s discussion of these issues in Incognito is detailed and thoughtful, and far too extensive to convey in this short blog post. If you’re intrigued, I recommend it highly.

Kevin Rhodes has been a lawyer for over 30 years. Drawing on insights gathered from science, technology, disruptive innovation, entrepreneurship, neuroscience, and psychology, and also from his personal experiences as a practicing lawyer and a “life athlete,” he’s on a mission to bring wellbeing to the people who learn, teach, and practice the law.


  1. Great post as always Kevin, my beef with the neuroscience envelope pushers is that they limit their focus to the brain alone, not the body as a system. Free will does not reside exclusively in the brain and the idea that “biology is our destiny” gets more complicated all the time as we consider how we as humans are hosts to so many other organisms and microorganisms. I bristle against all brain-centric scientific conclusions that strive to rationally explain human behavior as if we were simply embodied consequences, or the causality of things beyond our control which reside in our brains. My sincere hope is that more neuroscientists will start taking a bigger picture approach, as some have in recent years, away from the objective reductionist thinking that the brain is a black box in which our consciousness resides.

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