The rapid expansion in neuroscientific research fuelled by the advent of functional magnetic resonance imaging [fMRI] has been accompanied by popular and scholarly commentary suggesting that neuroscience may substantially alter, and perhaps will even revolutionize, both law and morality. This essay, a contribution to, Law and Neuroscience (M. Freeman, Ed. 2011), will attempt to put such claims in perspective and to consider how properly to think about the relation between law and neuroscience. The overarching thesis is that neuroscience may indeed make some contributions to legal doctrine, practice and theory, but such contributions will be few and modest for the foreseeable future.
The first part of this essay describes the law’s implicit folk psychological view of human behavior and why any other model is not possible at present. It then turns to dangerous distractions that have clouded clear thinking about the relation between scientific explanations of human behavior and law. Next, the essay considers how to translate the mechanistic findings of neuroscience into the folk psychological concepts the law employs. Finally, illustrative case studies of the legal relevance of neuroscience studies are presented. The discussion and all the examples focus on criminal law and on competence for the sake of simplicity and coherence, but the arguments are almost all generalizable to other legal contexts.
Morse, Stephen J., "Lost in Translation?: An Essay on Law and Neuroscience" (2010). Faculty Scholarship at Penn Law. 368.
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