Neuroscience and law

The philosopher’s outstretched hand

I have not found a better synthesis on this subject than a remarkable issue (60) of Cités published in 2014 (french): “What do cognitive neuroscience think and want?”. The theme allows the confrontation between philosophers and neuroscientists about the mind/body problem. Yves Charles Zarka, for philosophers, begins by giving a hand: he recognizes the indisputable place of neuroscience, and its growing importance in human affairs. Neural correlations of mental functions are constantly being refined. The map is becoming clearer. When it is completed, will the question of why it generates the phenomena felt be solved? And what causal power do our conscious impressions have? Do they make us responsible or do we witness our own automatisms of behavior?

The Azure sky of neuroscientists

Lionel Naccache, neurologist, considers the outstretched hand and is astonished: Why do we ask neuroscience what they want? Do we ask chemistry why it studies molecules? Naccache’s reaction is emblematic of materialists, exclusive followers of the upward look: they are content to unroll micromechanisms and model them, regardless of the consequences. Why worry about how the results will be used? Ontologists do science. They are producers. It’s up to others to manage the harvest.

Doesn’t this remind you of a famous episode in scientific research, the development of the atomic bomb? The group of scientists involved had split into two, those who do atomic research, without philosophizing, and those who think about the fallout. Among the latter, another division: the supporters of the use of this new ultimate weapon, and those to whom it horrifies.

We can easily transpose this ranking to neuroscientists. Naccache, surprised by a question he had never asked himself, looks for where it points. He realizes that neuroscience is indeed invading a field of psychological, moral, social and political power. As with the bomb, which side will the scientists fall into? But here the interested parties do not have the impression of developing a weapon. We will not find any who are worried about the development of knowledge of the brain. Only philosophers seem to be moved by it. Is this a well-founded fear?

The defenders of neuroscience, in the following articles, are particularly naïve. “We know but there is no problem,” I could summarize a little badly. The authors obviously do not have the teleological look that would allow them to ask themselves the right questions.

Distrust in the law

Fortunately, the article by Laura Pignatel and Olivier Oullier, on neuroscience and law, this time points out the main pitfall: mental operations are correlations of neural operations but is the opposite also true? What do we judge? MRI configurations or a representation of the event as experienced by the person? They show that the complement of neuroscience is questionable and must be reduced to frank pathological abnormalities (tumors, infarction, proven neurological diseases) and not make causal variants of the normal.

This article highlights the blindness of the previous authors, who saw no harmful consequences for neuroscience. Yet this is a good example. Giving them undue trust can lead to the conviction of innocent people or the exoneration of those who are reprehensible. Frightening when the cases are those of the Federal Court, but also disturbing when neuroscience wants to impose itself on other human disciplines.

Temptation in sex

The essential article of this issue of Cités is that of Serge Stoléru: “Are we free in relation to our sexual desires?”. Stoléru is the only one to go beyond simple neurophenomenological correlations to try to give directions to mental causality and thus weigh our responsibility in normal and deviant sexual behavior.

I pass the first half of the article that takes stock of the neuroscience of sex. It is then that Stoléru really tackles the question of sexual freedom. It begins with a classic horizontal approach: the opposition between two systems, one activating, impulsive, producing sexual arousal, the other inhibitory, conscious, adapting behavior to the personal and social context. Interesting point: Stoléru sees sexual freedom as the result of an effective inhibitory system. Freedom is to avoid social misconduct and not to surrender to one’s impulses. Legal extension: responsibility, which implies freedom of sexual choice, cannot be based on the drive itself, but on its lack of control, that is, the passivity of a normal inhibitory system. Irresponsibility, on the other hand, is sustainable if the inhibitory system is altered, unable to play its role (lesions of the right temporal lobe).

The coin

Stoléru moves to a less classical approach: “Any mental act is comparable to a coin with its two sides, heads and tails, one cannot go without the other. In this conception, the question of the direction of causality between mental activity and brain activity no longer makes much sense, because they are the two facets of one and the same reality.” A design that seems to dissolve the mind/body problem but says nothing materially about the relationship between the two sides of the coin or why a model applying to one side does not explain the other. Stoléru extends his conception by imagining “unconscious cerebral and behavioral reactions and this is also what is observed experimentally in response to subliminal stimuli“, which adds unconscious pieces to his credit but still does not solve the problem of the piece itself. No moral quality emerges from this quantity of pieces traversed by electro-chemical excitations.

Bottom-up and top-down

Stoléru evokes a third, more hierarchical approach: “In neurobiology, we frequently distinguish between ‘bottom-up’ and ‘top-down’ processes; the first start from the base of the mind, and go to the top, the second make the opposite course. […] So there seems to be a feedback loop. If we accept that conscious activity and its neural correlates are the peak of the feedback loop, then we do not see why we would deny consciousness and its neural correlates the ability to exert feedback on desires and the tendency to act.”

There would then be a hierarchy between neural networks. Some, only “operational”, cannot establish the responsibility of their owner. While others, “controllers”, better support the notion of free will. I can only encourage this Stratium-oriented vision, personal theory. It would then be necessary to retain, as an alteration of non-responsible discernment, only a pathology external to these networks and likely to harm their usual functioning.

Targeted neuroscientific diagnosis

It is not the MRI observation of an abnormal functioning of the networks that can exonerate a person of his reprehensible conduct, but the demonstration that the anomaly comes from a pathology foreign to these networks. To arbitrate is easy when it comes to a tumor, much more contentious when neuromediators are found in unusual quantities. Cause or consequence? Even when the cause is genetic, doesn’t the role of the conscious network is to control these innate deviances, no genome representing the norm? And if we consider that consciousness is incapable of doing so, is it not to deprive it of any right to freedom, and without possible resilience, to have to lock it up more definitively than the responsible consciousness?


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