If folk psychology is false, is legal responsibility dead?
If legal responsibility is dead, is everything permitted?
Maybe not, but such questions have received growing attention in the legal field, as the field confronts the prospect of an emergent “neuro-law.” Neuroscience challenges the unacknowledged background of commitments to theories of action that underwrite the law. In this post, I want to argue that it does so in a way that could have particular significance for a similar neuroscientific challenge to sociology. At least for some legal scholars, what drives the issue is nothing less than the explanatory merit of folk psychology itself: “The law will be fundamentally challenged only if neuroscience or any other science can conclusively demonstrate that the law’s psychology is wrong and that we are not the type of creatures for whom mental states are causally effective” (Morse 2015: 262).
Here, I want to argue that as these debates unfold in legal fields, they seem to translate in some vaguely interesting ways to the way similar debates unfold in sociology, not least because the primary definition of action found in sociology comes from Max Weber, i.e. “the lawyer as social thinker” (Turner and Factor 1994). Turner and Factor reveal that the predominant action accounting scheme present in sociology (Weberian) was essentially created by Weber’s “transformation of the categories of legal science into the basic categories of sociology” (Turner and Factor 1994: 1). Weber, of course, passed the German referendar and both his dissertation and habilitationsschrift were on the history of law (medieval commercial and Roman agrarian to be exact). It makes sense, then, that his approach to sociological categories (like action) should be situated against the “significant prehistory in the legal writing of his own time,” in particular the work of the legal philosopher Rudolf von Ihering (see Lizardo and Stoltz 2018).
Much of Weber’s theoretical legacy repurposed the conceptual frameworks of legal science in order to fundamentally strip sociology of any strong “social” theory by removing emphasis from collectivities, social forces, developmental principles, and social evolution. In their place, he relied on probabilistic causality, that was contingent on subjective meaning, and ideal-typical concept formation that involved “redefinition and substitution.” The goal was to devise an approach and categorical framework that would “eliminate questions that require an ‘ultimate cause.’” All of this appropriately situates Weber’s category of action in a legal tradition because it becomes clearly marked here as a category that targets the causal responsibility carried by individual actors and which is assigned in an attributivist manner that is not different from what happens in a courtroom and how legal practitioners reconstruct a line of action and attribute responsibility using the “language of the lawyer” (Turner and Factor 1994: 5).
As Omar and I argued (2015), Weber’s “basic sociological categories” approach to action remains the genealogical seed of present-day theories of action in sociology that span differences on the margins between interpretivist, rational choice or the DBO model. If Weber himself was essentially doing legal philosophy when he defined his category of action, then it seems worthwhile to examine what neuroscience means for the law and whether any lessons can be learned from a kind of (weak) comparison between sociology and the law as loosely allied fields. Nowhere does this seem more true than in making subjective meaning the best way of attributing causal responsibility (as Weber himself advocated).
While modern legal systems vary a great deal in their traditional practices (e.g. Napoleonic versus Common Law traditions), the basic concepts are surprisingly general and span different legal systems, as they all revolve around the attribution of responsibility and liability (Hart 2008). For our purposes, the most important facet of the law is that it features (as it did for Weber) an “act requirement,” which basically means that the only things that can count as illegal are actions. Legal codes are effectively long lists of “illegal” actions (about 7000 actions in the US federal legal code). Even a non-action must be made to resemble an action (by featuring a cognitive state at the very least) in order to be illegal.
How does the law define action? For the law, the most important aspect is that an action have an agent. And the only class of agents that count as legitimate agents for the law are human agents (not “autonomous agents” or non-human animal agents or force of God agents, etc; Hage 2017). This is important because to legally define human agency we must apply a framework that gives access to the mental states that make person X the agent causally responsible for this illegal act Y. While the act itself is illegal apart from this agent, it is only this agent that makes this action an action in a worked out legal frame. For this illegal action to count as an action, then, three main mental states must be attributable to the responsible agent, which serve as legally acceptable “dispositions” that do the most important job of linking him/her to the illegal act: “motivational states of desire, wish or purpose; cognitive states of belief; conative states of intending or willing” (Moore 1993: 3).
The focus on linking an agent to an action is the most important and (for my argument) most theoretically interesting part of how modern legal frameworks attribute agency. The fundamental and seemingly unconventional term underwriting this is, of course, “causal-responsibility.” As Hart (2008[1968]) notes, there are different types of responsibility and liability recognized by the law generally speaking: in addition to causal, there is role-responsibility, liability-responsibility, capacity-responsibility. Yet in every case, liability and responsibility can be assigned only if an “act occurred.” And in order for an act to have occurred, there must be an agent linked to it, and that agent must have had a motivational state, cognitive state, and conative state in order to be linked to it.
So what does neuroscience mean for the law? It potentially means that the conventional and critically important link between agents and actions (an analogue to Weberian subjective meaning) in modern law is scrambled beyond recognition. Any skepticism about folk psychological states will create problems if, as the argument goes, acts (not agents) are illegal but those acts require an agent-linkage that only works through attributative folk psychological states. Neuroscience potentially makes “acts” legally unrecognizable by jeopardizing the logical connection between agents and actions that takes standard form in a belief/desire deduction. As this is established in the “grammar of the law” (Boltanski 2014), it means that criminal responsibility cannot be adequately served by attributing states of mind.
And that is exactly the problem as Morse (2008) sees it, because neuroscience promotes a sort of “no action thesis” in response. Namely, “the truth of [neural] determinism is consistent with the existence or non-existence of agency, with the causal role or non-causal role of mental states in explaining behavior. Responsibility depends on agency, on the causal role of mental states, and the new discoveries arguably deny the possibility of agency as it is traditionally conceived.” Thus, neuroscientific correlates can make it seem as if the act did not occur because of an agent. The basic problem is that the legal “reality of the act” is now independent from what the law can recognize as the “agent of the act.”
Ultimately Morse defers to something like Daniel Dennett’s “intentional stance” (1987) as a deflationary move, which foregrounds the sheer pragmatic value of attributive styles that are (now) mainly conventional by comparison. This is a safe solution and, for him, it is the most likely solution, even if neuro-law is here to stay. A revolutionary displacement in law will not occur, at least not anytime soon, for reasons not the least of which have to do with the heavy weight of judicial precedent. Legal traditions consistently outrun the introduction of new explanatory frames.
It still seems reasonable to ask whether a tour down this rabbit hole has any bearing on the way sociologists explain action, the historical Weber connection notwithstanding. Turner and Factor (1994) argue that there is a significant difference in at least one critical respect: lawyers are constrained by the “dogmatic framework of the law” in attributing responsibility for illegal acts. The sociologist does not have exactly the same burden, but tries to satisfy instead a “conceptual framework of the audience … a shifting, ‘eternally young’ framework” (e.g. what Weber called the “language of life”). In a very conventional sense, this runs up against determinism of a different sort (“social determinism”). But this could actually leave sociology positioned to translate neuroscience into action accounting schemes that embrace a “no action thesis” and do not try to work around it by conventionalizing certain frameworks.
Stephen Turner’s new book (2018) introduces the catchy phrase “verstehen bubble.” One application of it could very well be to entire fields that become trapped within the circular limits of categories that enable both communication and introspection and make phenomenon unrecognizable or incommunicable except as the tokens of self-reinforcing or looping types. Presumably, there are not too many fields that will feature both classes of categories, but as the above discussion suggests, a verstehen bubble seems to characterize the law while sociology is arguably less prone by comparison. Its categories of communication (at least) can find the language of intention, belief and desire problematic, though counter-vocabularies are either very carefully partialized (see Kurzman 1991) or even combined with introspective categories (becoming a paranoid style [Boltanski 2014]). Nevertheless, its unique position as both introspective and communicative would, perhaps by that fact alone, make sociology a venue for producing “surrogates” (in Turner’s terms) that reach toward an explanatory domain located somewhere beyond the verstehen bubble.
References
Boltanski, Luc. (2014). Mysteries and Conspiracies. London: Polity.
Dennett, Daniel. (1987). The Intentional Stance. MIT Press.
Hage, Jaap. (2017). “Theoretical Foundations for the Responsibility of Autonomous Agents.” Artificial Intelligence and the Law 25: 255-271.
Hart, HLA. (2008). Punishment and Responsibility: Essays in the Philosophy of Law. Oxford UP.
Kurzman, Charles. (1991). “Convincing Sociologists: Values and Interests in the Sociology of Knowledge” pp. 250-271 in Ethnography Unbound. UC Press.
Lizardo, Omar and Dustin Stoltz (2018). “Max Weber’s Ideal versus Material Interests Revisited.” European Journal of Social Theory 21: 3-21.
Morse, Stephen. (2008). “Determinism and the Death of Folk Psychology: Two Challenges for Responsibility from Neuroscience.” Minnesota Journal of Law, Science and Technology 9: 1-36.
Morse, Stephen. (2015). “Neuroscience, Free Will and Criminal Responsibility.” in Free Will and the Brain. Cambridge UP.
Strand, Michael and Omar Lizardo. (2015). “Beyond World Images: Belief as Embodied Action in the World.” Sociological Theory 33: 44-70.
Turner, Stephen. (2018). Cognitive Science and the Social: A Primer. Routledge.
Turner, Stephen and Regis Factor. (1994). Max Weber: The Lawyer as Social Thinker. London: Routledge.