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The province of jurisprudence naturalized

Naturalism and the legal image of man

Łukasz Kurek

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1 Introduction

1Naturalism is a famously ambiguous doctrine. In this paper naturalism will be understood as a doctrine proclaiming that philosophical questions are questions about the world – understood broadly. Therefore, philosophical methods of inquiry should be held to the same standard as other methods of inquiry about the world. The standard in question is evidential – because all claims about the world can be evaluated on the basis of their evidential support. For most naturalists, science provides the best evidence, as compared, for instance, to common sense.

2In the last decades, naturalism has swept many branches of philosophy. Curiously, legal philosophy remains somewhat resistant. Some leading philosophers of law explicitly reject naturalism. Many others keep their distance. The first goal of this paper is to argue that the main reason why naturalistic perspective on law is difficult to take is the prevailing legal image of man. According to this image – which has its roots in folk psychology – persons have the capacity to be authentically rational, i.e. they are able to recognize and to follow rules of rationality. The legal image of man is a powerful conceptual tool, used by legal theorists and practitioners to make sense of human behavior in the legal context. However – as it will be argued below – this image seems to be in conflict with its scientific counterpart.

3The second goal of the paper is to assess three stances toward the relation between the legal and the scientific images of a man: autonomy, revisionism and integrationism. According to the first proposal, both images are independent. According to the proponents of revisionism, the legal image should be completely – or at least a great extent – modified due to its inconsistency with scientific evidence. As for the proponents of integrationism, they argue that there is a possibility of a synthesis of both images, namely an integration of the legal image of man with the scientific one, which would maintain the core assumptions of the former.

2 Law and folk psychology

  • 1 Andrews 2012: 7.

4Folk-psychology is the common sense understanding of other minds. It is an umbrella term which covers broad range of abilities, such as predicting, explaining, and justifying behavior.1 These abilities are crucial in every social context, as they allow people to make sense of the actions of other people – as well as their own. The invention of folk psychology allowed coordinated behavior to emerge, from cooperative foraging to stock exchange and justice system.

  • 2 Malle 2004: 92-93.
  • 3 Malle 2004: 111.

5 The crucial, folk-psychological concept is the concept of reason. Reasons are understood as causes of thought and behavior. However, they are causes of a special kind. The folk concept of reason pertains only to those causes which are transparent for the acting person, and on the grounds of which she makes her decision. It is important to note that the folk explanation of behavior includes reasons only when the target behavior is intentional.2 Unintentional behavior is explained by causes understood in a standard, physical manner – such as situational factors or character traits.3 It is the mode of explanation of intentional behavior, however, which truly marks the distinctiveness of folk psychology as compared to other modes of explanation.

6 Reasons come in different flavors, but the most standard ones are beliefs and desires. Beliefs cover a wide array of thoughts, from hunches to convictions about the truth of a proposition. The role of belief is to truthfully represent the world. Desires, on the other hand, pertain to the goals of actions. Many philosophers regard desire as more fundamental than belief in the causal chain leading to action. Philosophers tend to agree that it is desire which activates practical reason, which then assesses the possible routes of achieving the desired goal and chooses the best one. However, to make this assessment, practical reason must utilize the beliefs of the person. To achieve one’s goals, it is necessary to know how things are, not only how one wish them to be.

7 Reasons are theoretical, unobservable entities postulated by the common-sense theory of mind. As such, they are no different than various entities postulated by scientific theories. The uniqueness of reason explanations boils down to the fact that they require an assumption of the rationality of the person whose behavior is the target of the explanation. Here is how this central assumption of folk psychology is described by Daniel Dennett:

  • 4 Dennett 1987: 52.

However rational we are, it is the myth of our rational agenthood that structures and organizes our attributions of belief and desire to others and that regulates our own deliberations and investigations. We aspire to rationality, and without the myth of our rationality the concepts of belief and desire would be uprooted. Folk psychology, then, is idealized in that it produces its predictions and explanations by calculating in a normative system; it predicts what we will believe, desire, and do, by determining what we ought to believe, desire, and do.4

8Without the rationality assumption, the folk explanation of behavior would face the danger of choosing from too many available explanations. Even the simplest behavior, such as going outside with an umbrella, can be explained in many different, incompatible ways – without assuming that the person with an umbrella is rational and she wanted a shelter from the rain. Other reasons will always be possible, but the rationality assumption helps to limit the assessment of the available evidence, to identify the reasons which seem to be the most plausible and to choose the best explanation. Assessing all the available evidence would be counterproductive – it would quickly lead to a an information overload – so folk-psychologists imagine or fill in the details pertaining to the target behavior themselves.

9 The rationality assumed by folk psychologists can be divided into two mental capacities: the capacity to act in the light of reasons and the capacity to act on the grounds of reasons. The former consists in being able to access one’s beliefs and desires. The latter means that one is able to weigh the beliefs and desires and to make the decision to act on the basis of this evaluation. It is useful to distinguish between these capacities as it is psychologically possible to possess one without possessing the other.

10 The disorder of the capacity to recognize reasons can be illustrated by the phenomenon of self-deception. It consists in having a belief despite there being easily accessible and strong evidence against it. Self-deceivers are unable to recognize the reasons which undermine their false beliefs. As to the capacity to act on the grounds of reasons, it is impaired in the context of akrasiaor weakness of will – which results in an action contrary to the consciously held belief about what should one do. Akratic behavior, however, fulfils a strong desire. Persons acting acratically recognize their reasons, but they are unable to act on the grounds of them.

11 The legal image of man is founded on folk psychology. There are many legal provisions which directly refer to the mind, mental states or mental causes of decision making. For instance, in the legal context, it is often crucial to establish why a person did what she did. To make this investigation possible, appropriate conceptual tools – pertaining to the psychological mechanism of decision making – are required. Therefore, from the legal perspective, people are understood to be capable of practical reason – of forming intentions on the basis of their beliefs and desires. This is why legal and moral systems – of course with some cultural and historic variations – include concepts such as intention, motive, or forethought. The debates pertaining to the precise legal meaning of these concepts are often inconclusive, but it seems hard to imagine a legal system which precludes the discussion about the person mental states when she committed a crime, signed a contract, or undertook any kind of action which had legal consequences. The following excerpt from the Model Penal Code is one of many examples of the role of folk-psychology in the law:

A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable. Te following are not voluntary acts within the meaning of this Section: (a) a reflex or convulsion; (b) a bodily movement during unconsciousness or sleep; (c) conduct during hypnosis or resulting from hypnotic suggestion; (d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.

12 The concept of voluntariness, central to all modern systems of criminal law, is closely connected to the concept of reason. Voluntary behavior is the behavior caused by reasons. Law assumes, therefore, that most adults are able to determine their actions using their reasons. From the criminal law perspective, a person who is unable to act in the light of and on the grounds of reasons cannot be legally responsible for her actions. Of course, there are many aspects of voluntariness which are left out from legal provisions. When they are relevant to the legal case at hand, law utilizes the shared cultural knowledge pertaining to the causes of behavior, i.e. the details of folk psychology.

  • 5 Malle & Nelson 2003: 563-580.

13 Inferring mental states when evaluating action is common in the legal context as well as in everyday situations. It does not mean, however, that mental concepts have precisely the same meaning in both contexts. For instance, there are claims in the experimental literature that at least certain, everyday mental states concepts (such as the concept of intentionality, or what it means to do something voluntarily, purposely, knowingly, wilfully etc.) mean something different in law than in everyday contexts.5 Perhaps a clear case of such a difference in meaning pertains to the legal term ‘indirect intent’ (dolus eventualis), which seems to have a somewhat different meaning than ‘intent’ in the everyday context. However, despite these differences, what unifies the law with folk psychology is the rationality assumption.

  • 6 Evans, Newstead & Byrne 1993: 14.

14 It is difficult to establish to what extent people are rational according to the law. Surely, the capacities to recognize reasons and to act on the grounds of them are to be understood dispositionally. It is not the case that law treats people as conforming to all rules of rationality all the time. This would mean, for instance, that law would require its subjects to form beliefs according to the rules of logic, i.e. if a person believes that p, she should also belief all logical consequences of p, which would obviously violate the ‘ought implies can’ principle. This is surely not the case, at least on the assumption that the legal image of man is folk psychological. The experimental literature on the subject of reasoning strongly suggests that persons have no clear grasp, even an implicit one, of many important rules of rationality, such as modus tollendo tollens or the conjunction rule.6 If people, generally, do not understand such reasons for action, it is puzzling to propose that they interpret others as adhering to rules of rationality as it seems that they just do not possess the concepts of these rules. Despite this bounded rationality, folk psychology works – for instance, behaviour predictions based on the common sense understanding of the mind are effective. All of this suggests that it would not be convincing to claim that that folk psychology – and the legal image of man – assumes a strong notion of rationality.

15 It seems that law assumes some type of moderate rationality, i.e. a capacity to sometimes conform to some of the rules of rationality. The obvious problem with this new notion of rationality is its vagueness. The law’s solution to the problem of rationality is to provide its negative description – to list all situations which exclude or diminish rationality, such as mental disorder, being underage or acting on strong emotion. In such cases, it is clear that persons are unable to recognize or to act on legal rules understood as reasons for action. Unfortunately, it is far from self-evident how to depict positively this notion of rationality. One of the few places in the contemporary legal systems where the positive notion of rationality is explicitly discussed is the so-called reasonable person standard. In many legal systems, it is a conceptual tool which helps to assess whether the legal subject acted negligently. To determine whether the conduct of the defendant is a case of careless omission, the judge will not be interested whether she could have known and should she have known, but whether the reasonable person – in the position of the defendant – could have known and should she have known. The reasonable person standard is an objective test of negligence, which does not aim at assessing individual fault of the defendant. The precise specification of the content of this standard goes beyond the goal of this paper. Its very presence underlines, however, the importance of the rationality assumption in law. Utilizing this standard would be unjustified if legal subject were unable to sometimes conform to some rules of rationality.

16 Legal rules should not be understood as physical causes of behavior, influencing persons in a reflex-like manner. The difference between the folk psychological – and legal – explanation of action and its scientific counterpart is aptly described by John Searle:

  • 7 Searle 2002: 33.

Once we have the possibility of explaining particular forms of human behavior as following rules, we have a very rich explanatory apparatus that differs dramatically from the explanatory apparatus of the natural sciences. When we say we are following rules, we are accepting the notion of mental causation and the attendant notions of rationality and existence of norms (…). The content of the rule does not just describe what is happening, but plays a part in making it happen.7

  • 8 Hart 2012: 88-89.
  • 9 Shapiro 2006: 1157.

17The content of the rule – understood as a reason for action – can be grasped only from the internal point of view, i.e. from the point of view of the person who follows the rule or deliberates whether to follow the rule. It is not possible to fully grasp its content from the external point of view – from the point of view of the third-person observer. From this perspective, one can only determine whether a person acts in accordance to a rule. The internal point of view, as the proper perspective to assess the phenomenon of law, has been famously proposed by Herbert L. A. Hart.8 Taking the internal point of view – “the practical attitude of rule acceptance”9 – results in a common sense analysis of the psychological mechanisms responsible for rule-following. It clearly rests on the assumption that people who actually follow legal rules have the capacity to recognize them and act on their grounds. In other words, it is assumed that reasons genuinely influence thought and behaviour.

3 The legal image of man from the scientific perspective

18The reliability of the evidence pertaining to the causes of thought and behavior provided by taking the internal point of view has been challenged by science. According to the contemporary scientific image of man, the real causes of thought and behavior are, at least to a great, unavailable from the first-person perspective. A significant amount of scientific evidence suggests that adapting this perspective often leads to confabulatory explanations – in many cases, when persons provide folk psychological explanations of behavior, such reports are false. It is not merely the case of the fallibility of memory. The problem is that such explanations of behavior tend to be made up on the spot, and have nothing or very little to do with actual memories. Confabulation here is understood as a creative filling in, utilized in the social context.

19To some extent, folk psychology can be compared to perception. Under some specific circumstances, both cognitive systems produce systematic errors – in the case of perception, the errors in question are visual illusions. However, it seems that perception is more reliable as in many cases of visual illusions people are aware of them and, as a consequence, they do not present a serious obstacle to thought and behavior. On the other hand, confabulations pertaining to the common sense explanation of behavior are rarely noticed. One of the reasons for this is that folk psychology operates on the grounds of the inference to the best explanation – and, as it was mentioned, very often the amount of evidence required to explain behavior is too large. In such cases, folk psychologists take shortcuts – for instance, they use the rationality assumption – which nevertheless do not undermine their confidence in the plausibility of the explanation.

  • 10 Wegner 2002.

20Perhaps the most famous example of a scientific theory revealing confabulations in the folk psychological explanation of behavior is Daniel Wegners’s theory on the illusion of conscious will.10 It is well-known mainly because of its scope and because of the amount of evidence gathered in its support. According to this theory, the feeling of acting consciously is always an illusion, and from the internal point of view there is no access to the actual causes of thought and behavior. Wegner’s theory is based on the widely accepted, scientific understanding of the mind, according to which the mind can be divided into two basic parts. One is conscious and controllable and the other is unconscious and automated. According to Wegner, the former operates independently of the latter, and it is the latter which contains the mechanisms which actually cause thought and behavior. However, the conscious mind creates an experience of conscious will which accompanies some of our actions. This experience is not a part of the causal chain leading to the action, but it generates an illusion that the conscious will influences the action.

  • 11 Wegner 2002: 70-78.

21The American psychologist points to three principles which should be satisfied for the experience of illusion of conscious will to emerge: the priority principle, the consistency principle, and the exclusivity principle. The priority principle pertains to the time window in which the action and the accompanying conscious thought should happen. According to this principle, if the conscious thought connected with an action will appears before the action, the experience of conscious will is stronger as compared to the situation when the conscious thought appears after the action.11 As a general matter, the experience of conscious will is weaker the longer the period of time between the action and accompanying conscious thought. One of the experiments the results of which support the priority principle is the experiment carried out by the Belgian psychologist Albert Michotte. In this experiment, participants were shown objects which move according to different patterns. In some cases, one object moved to close proximity with the second object which, when the objects appeared to touch, moved in the opposite direction. In other cases, the second object moved only after some time has passed from touching by the first object. The results clearly suggested that only in the first case the participants perceived the first object as the cause of the movement of the second object.

  • 12 Wegner 2002: 78-90.

22According to the consistency principle, the experience of conscious will emerges when the content of the conscious thought is consistent with the action which is perceived to be connected with the thought.12 Particularly, when the person forms an intent of doing something and then actually does it, conscious will is distinctly experienced. In support of the consistency principle, Wegner points to the phenomenon of creative insight. Despite the fact that creative insight can result with solutions to difficult problems, often tackled for a long time, often these results are described as ideas which happen to a person – not as ideas at which one arrived himself. Creatvie insight has been described in this manner by many scientists – for instance, by Oliver Wendell Holms, Albert Einstein or Henri Poincare. When creative insight occurs, the experience of conscious will is weak or nonexistent.

  • 13 Wegner 2002: 90-95.

23The exclusivity principle states that for the experience of conscious will to emerge, the conscious thought pertaining to an action should be perceived as its sole cause.13 When the person perceives other phenomena as influencing the action, the experience will be significantly weaker. The phenomena “competing” with conscious thought include emotions, habits or actions of other persons.

24Wegner’s theory may be regarded as a somewhat weak argument against the plausibility of the folk psychological explanation of behavior – at the center of which there is the assumption that conscious reasons are actual causes of much of our thinking and behavior. After all, it is difficult to imagine that the core assumptions of folk psychology are mistaken, taking into account its efficiency. Therefore, resistance to the above evidence is a natural reaction of the mind and it can be compared to the reaction to many visual illusions. For instance, despite the fact that the person knows that the shafts of two arrows are of the same length, she will perceive the shaft of the one with the fins directed outward as longer than the shaft of the one with the fins directed inward. It will be argued, however, that the some of the far-reaching conclusion which Wegner draws from the experimental work are unjustified. On the other hand – to some extent – the argument for the skepticism toward the internal point of view explanation of behavior which is based on experimental research succeeds.

  • 14 Storms & Nisbett 1970: 319-328.

25It is worth to mention that Wegner’s theory is only one of many scientific examples undermining the reliability of introspection in the context of the explanation of thought and behavior. Theories and evidence from distinct areas of empirical inquiry support the conclusion that people make often confabulate when they think about the mind and behavior from the first-person perspective. The locus classicus of the research in this domain is a 1997 paper “Telling more than we can know: Verbal reports on mental processes” by Richard Nisbett and Timothy Wilson. In this paper, a lot of experimental work supporting the skepticism toward the reliability first-person perspective on explanation of behavior is discussed. One striking example pertains to persons suffering from insomnia.14

26The researchers, Richarchd Nisbett and Michael Storms, asked the participants to write down the time they went to bed and the time when they finally fell asleep. After a couple of days of this routine, the first group of participants (the “arousal” group) were given placebo pills to take 15-minutes before going to bed. They were told that the pills will cause faster heartbeat, irregular breathing, increased body temperature and alertness – all of these are typical symptoms of insomnia. The second group of participants (the “relaxed” group) were told that the pills will have opposite effects: slower heartbeat, regular breathing, decreased body temperature and reduction in alertness. The researchers anticipated that the participants from the arousal group should fall asleep faster after taking the pill, because they will unconsciously attribute their symptoms of insomnia to the pill and not to their condition. On the other hand, the participants in the relaxed group were expected to fall asleep faster, because despite the taking pill their symptoms of insomnia will not dampen their symptoms of insomnia. As a consequence, they will unconsciously interpret the situation as them suffering from a particularly severe insomnia. These predictions were confirmed: the participants in the arousal group fell asleep 28% quicker when they took the pill and the participants in the relaxed group fell asleep 42% slower.

27What is especially interesting is that there was a second stage of the experiment: subjects in the arousal group were informed that they fell asleep quicker after taking the pill and subjects in the relaxed group were informed that they fell asleep slower after taking the pill. When the participants in both groups were asked for the explanation of this fact, the subjects from the arousal group said, for instance, that they usually fall asleep quicker at the end of the week or that they had a difficult exam which they passed well. Subjects in the relaxed group confabulated in a similar manner. All of the participants in the experiment confirmed that after taking the pill they stopped thinking about it and they strongly disagreed with the explanation of their behavior provided by the researchers which referred to the workings of the unconscious interpretative mechanisms.

28 Assessing the above evidence form the perspective of the legal image of man, it is clear that experiments of this kind cannot indicate that people are unable to act in the light of and on the grounds of reasons – or that there are no reasons at all – but only that there are situations when the reasons we think are the causes of our actions are not genuine causes of these actions. In the discussed experiment it seems that the subjects lacked not only the ability to react to reasons, because the cognitive mechanisms which were responsible for subjects’ verbal responses in the second stage of the experiment were clearly distinct from the cognitive mechanisms which actually operated and caused the reduction or the intensification of their insomnia. Furthermore, the participants were unable to recognize reasons, because they did not believe the experimenters when they were told about the experimental hypothesis and the postulated attribution process. However, at most this suggests that they lacked rationality only in the context of the experimental situation – not that they lacked rationality tout court.

  • 15 Nisbett & Wilson 1977: 253.

29 Even in the context of the experimental situation one can argue that subjects were, to some extent, rational. For instance, note that the explanation of the experimental evidence provided bu researchers – the evidence that the subjects in the arousal group usually fell asleep quicker and why the subjects in the relaxation group usually fell asleep slower – gets off the ground by granting people the ability to assess beliefs and reason unconsciously. Such an explanation assumes that the subjects in question were able to respond to reasons but on the unconscious, automatic level. It should be underlined that in the paper by Nisbett and Wilson, the authors claimed only that the verbal reports of the subjects were based on rationalization, theorizing or self-interpretation and that the reports in questions are an unreliable source of insight into the workings of the implicit cognitive processes. Still, they suggested that this fact does not exclude the possibility that people “are often right about the causes of our judgments and behavior.”15

  • 16 Aronson, Wilson, Akert & Sommers 2015: 128.

30 Despite the fact that experimental evidence of the kind cannot falsify the core folk-psychological assumptions, it should give rise to a wide-ranging skepticism toward the reliability of this perspective on the mind and its influence on behavior. Scientific evidence suggests that when mind-reading, lay people tend to assume that they see things in an unmediated and objective manner. Furthermore, at least in some cases, they even tend to dismiss those who disagree with their commons sense insights as ignorant or biased. Whereas, in reality, it is them who are mistaken as to the actual psychological mechanisms which generated the behavior in question. This tendency may be regarded as a form of cognitive illusion – which in the psychological literature is usually described as “introspection illusion”16 – resulting in confabulatory explanations.

31 Skepticism toward the internal point of view leads, in a very straightforward manner, to skepticism toward the legal image of man. This skepticism is the subject of heated debate about the relation between the law and the sciences. As it was noted at the beginning of this paper, there are at least three strategies of resolving the conflict between the legal and the scientific images of the man: autonomy, revisionism and integrationism. Below, these strategies will be critically assessed.

4 Revisionism

32Revisionists see folk psychology as founded on false presuppositions. These assumptions pertain to various characteristics of the mind which – from the scientific perspective – are supposed to be untenable. In consequence, the legal image of man should be revised and made coherent with its scientific counterpart. The revision is significant – in some cases, it will lead to the elimination of core presuppositions of folk psychology.

33 On of the most popular, folk-psychological assumptions challenged by revisionist is the view of the mind as the ‘uncaused causer’. According to this view, the mind is unique as compared to other natural phenomena, because it has itself as a sole or the most important cause. In other words, the mind is autonomous. Persons – when they make judgments or decisions – follow rules which they themselves find reasonable. Thus, explanation of mental phenomena cannot be reduced to explanation of physical phenomena – for instance, neuroscientific explanation. Explanation of behavior in terms of reasons – i.e. explanation of behavior from the internal point of view – assumes that reasons are recognized and acted on by the person. Factors independent from her reasoning, such as her brain activity, should not be included in the explanation, as it will cease to be the explanation from the internal point of view.

34 A much discussed example of revisionism can be found in a paper by two psychologists, Joshua Greene and Jonathan Cohen, claiming that:

  • 17 Greene & Cohen 2004: 1781.

As more and more scientifc facts come in, providing increasingly vivid illustrations of what the human mind is really like, more and more people will develop moral intuitions that are at odds with our current social practices (…) Neuroscience has a special role to play in this process for the following reason. As long as the mind remains a black box, there will always be a donkey on which to pin dualist and libertarian intuitions (…) What neuroscience does, and will continue to do at an accelerated pace, is elucidate the “when,” “where” and “how” of the mechanical processes that cause behaviour. It is one thing to deny that human decision-making is purely mechanical when your opponent offers only a general, philosophical argument. It is quite another to hold your ground when your opponent can make detailed predictions about how these mechanical processes work, complete with images of the brain structures involved and equations that describe their function (…) At some further point (…) people may grow up completely used to the idea that every decision is a thoroughly mechanical process, the outcome of which is completely determined by the results of prior mechanical processes. What will such people think as they sit in their jury boxes? (…) Will jurors of the future wonder whether the defendant (…) could have done otherwise? Whether he really deserves to be punished (…)? We submit that these questions, which seem so important today, will lose their grip in an age when the mechanical nature of human decision-making is fully appreciated. Te law will continue to punish misdeeds, as it must for practical reasons, but the idea of distinguishing the truly, deeply guilty from those who are merely victims of neuronal circumstances will, we submit, seem pointless.17

35Greene and Cohen raise two interesting issues in the context of the relation between the legal and the scientific images of a man. The first is the mechanical understanding of the mind by science and its apparent incompatibility with its folk psychological understanding. The second are the possible consequences of this incompatibility, which pertain to, inter alia, the practices of holding persons legally responsible. It should be noted that these consequences are drawn on the basis of an analysis of a different aspect of the assumption that the mind is the ‘uncaused causer’ than the aspect considered in this paper. In this paper, the main focus is the distinctiveness of the folk-psychological explanation of behavior, i.e. reason explanation. Greene and Cohen, on the other hand, discuss the common sense ontology of the mind and argue that it includes the presupposition of psychophysical dualism and the presupposition of persons possessing libertarian free will.

36 Both of these aspects are clearly connected – the mechanistic mode of explanation is at odds with both reason explanation and the libertarian free will. This connection is not accidental, as the view that reasons are genuine causes of thought and behavior is at the core of dualism and libertarianism, and – more generally – at the core of the legal image of man.

  • 18 Craver 2007: 9.

37 In short, the mechanistic explanation assumes that complex phenomena can be explained by reference to how their parts work. It is a type of causal explanation – meaning that mechanisms are understood to be physical phenomena which consist of parts coming into contact with each other. Also, it is a type of explanation which can be usually divided into levels. For instance, in neuroscience – which is perhaps a paradigmatic example of a mechanistic science – the brain is understood to be a complex mechanism and its activity should be explained at various, interconnected levels, e.g. the levels of the whole organ, of cells, of molecules and of atoms.18 Furthermore – similarly to all types of scientific explanations – it is also an explanation from the external point of view, from the perspective of a detached observer. When the behavior is explained mechanically, it is not the case that reasons are out of the picture. As it was mentioned, reason explanation is causal – reasons are understood as genuine causes of thought and behavior. However, on the mechanical account, reason explanation loses its authority and becomes only one of the many levels of explanation of behavior.

38 As for the possible consequences of the conflict between folk psychology and the science of the mind, revisionists sensibly argue that science trumps common sense and, in such cases, the practices pertaining to dubious assumptions of folk psychology should be revised. An example of such a situation is the practice of holding people morally and legally responsible. If the retributive justification of punishment is founded on the idea that the mind is qualitatively distinct form the body and that persons are ‘uncaused causes’, due to their abilities to act on the ground of and in the light of reasons, then the retributive justification should be discarded. Furthermore, the practices of holding people responsible should change to reflect the utilitarian justification of punishment. Scientific evidence clearly suggests that even when persons reason, their reasons are not the sole causes of their judgments and decisions. There are such causes which are inaccessible from the internal point of view.

39 It seems that the overarching assumption made by revisionist which pertains to reasons – perhaps it even pertains to folk psychology as such – is that they are important only instrumentally. According to revisionists, reasons are not genuine causes of thought and behavior. After all, one of the core assumptions of the folk-psychological conceptual network is the already mentioned ‘uncaused causer’ assumption, which is supposed to be an illusion. And reason explanations are understood here to depend on this assumption. Nevertheless, reason explanation should not be abandoned as it is useful from the practical point of view. For instance, at the present moment it is difficult to imagine how the practice of holding responsible could look like if reason explanation of behavior was discarded.

40 There are undoubtedly differences between the mechanistic explanation and the explanation based on reasons. However, these differences are not as significant as the revisionists claim. Greene and Cohen’s conclusion is problematic because it is by all means not self-evident that folk psychology assumes dualism and libertarianism. In fact, in the experimental research on this subject, there is a lack of consensus as to the content of the common sense assumptions about these doctrines. Some experimental results suggest that dualism and libertarianism are the default views of lay people. Still, there are experiments suggesting otherwise, i.e. that people are compatibilists by nature and do not think of the mind as something radically distinct from the body. Because of these difficulties it seems prudent to discuss the threat of mechanistic view of the mind to folk psychology in the context of reason explanation of behavior – as reasons understood as causes of thought and behavior are important for both libertarianism and compatibilism.

41 Revisionism may be a tempting position in the context of the relation between the legal and the scientific images of a man. After all, instrumentalism is a well-grounded position, accepted in connection to various phenomena. However, the problem with this position is that it seems to be inconsistent. This view accepts that science is unlikely to find objects which resemble reasons – for instance in the brain of a person. Still, despite their absence from the scientific ontology, persons are permitted to ascribe reasons in the the legal and everyday contexts. In other words, the revisionist seems to say that it is useful to posit mental states in the long run and all things considered, but mental states are not real. Here, a pressing question lurks: why would reason explanations be useful and appropriate for practical purposes if they are not real? It seems that phenomena are really explanatory only if they are real or at least as real as it gets.

42 Furthermore, irrealism in respect to reasons undermines core folk psychological assumptions present in the law. It seems that many of the actions for which persons deserve to be praised, blamed, rewarded or punished are the product of mental causation, and – at least in principle – persons are genuinely responsive to beliefs and desires. Only such intentional agents can violate expectations of what they owe to others. If there are no mental states, then explanations of behavior based on the legal image of the man are only superficial or illusionary and cannot really justify attributions of legal responsibility. All of this suggests that revisionism is not a viable option in connection to the relation between the legal and the scientific images of the man.

5 Autonomy

  • 19 Wason & Evans 1975: 141-154.

43According to the proponents of the autonomy of folk psychology, there is a radical discrepancy between the common sense explanation of behavior and its scientific counterpart. On this view, reasons are genuine causes of thought and behavior – I.e. instrumentalism is rejected – but they are different from the causes which feature in empirical explanations. The uniqueness of reasons boils down to the already mentioned fact that when one acts in the light of and on the grounds of reason, one follows rules of rationality. An example of such a rule of rationality is modus ponendo ponens: when a person believes that p and q and she believes that p she should believe that q. What is more, according to this view one not only should believe that q, but he will tend to believe that q – at least if the psychological mechanism responsible for belief formation operated properly. The interesting fact is that – as it was already mentioned – modus ponendo ponens actually seems to be the rule of rationality which people find intuitive and its application is not cognitively demanding. To be at least minimally plausible, the hypothesis of the intuitive grasp of logical relations between propositions should be very weak and pertain to only to a limited number of these relations. This is because, in general, people have difficulties with thinking logically. For instance, these difficulties are connected with the application of modus tollendo tollens, a rule of rationality not considerably different from modus ponendo ponens – at least form the logical point of view.19

44 In the philosophical literature, reasons – such as beliefs and desires – are usually described as ‘propositional attitudes’, because they are understood to be psychological relations between persons and propositions. John McDowell, one of the philosophers who defend the autonomy of folk psychology, describes the difference between folk psychology and science of the mind as follows:

The concepts of the propositional attitudes have their proper home in explanations of a special sort: explanations in which things are made intelligible by being revealed to be, or to approximate to being, as they rationally ought to be. This is to be contrasted with a style of explanation in which one makes things intelligible by representing their coming into being as a particular instance of how things generally tend to happen.

45On this view, the goal of folk psychology is not to explain, but to rationalize behavior – to provide sufficient premises justifying the behavior. As it was already mentioned, folk psychologists assume their and other persons’ rationality when explaining behavior. However, rules of rationality do not provide a standard causal explanation of how the mind works, because they are not understood as laws governing thought and behavior. Despite the fact that there is some empirical evidence that people tend to accept some rules of rationality – such as modus ponendo ponens – it seems implausible that rules of rationality – e.g. rules of logic or rules of probability theory – actually describe the transitions between mental states and their influence on behavior. From the scientific perspective, it seems that people think according to simple, fallible rules, such as the much discussed heuristics. These heuristics only approximate the rules dictated by various normative theories of reasoning. If people actually do not, in everyday reasonings, apply the rules of rationality, it seems implausible to hypothesize that in the explanation of mind, these rules may be a part of explanans. This is why, according to the proponents of the autonomy of folk psychology, it is better to describe common sense explanation of behavior as ‘rationalization’.

  • 20 Pardo & Patterson 2013.
  • 21 Greene & Cohen 2004.

46 This view is quite popular in the discussion pertaining to the relation between law and science. A variant of this view of is defended by two legal scholars, Michael Pardo and Dennis Patterson, while discussing ‘neurolaw’ – a recently popular current in the legal research.20 Proponents of neurolaw argue that sciences will have a significant impact on law. Some of them defend views similar to revisionism.21 However, Pardo and Patterson argue that the internal point view is autonomous in regard to the scientific explanation of behavior. They defend a thoroughly folk psychological criteria for the ascription of reasons, at the core of which is the observed behavior of the person. Their main argument is that the behavioral criteria provide the measure for the ascription of reasons and not its mere measurement. The measurement could be provided by neuroscience – at least when it will be adequately advanced. Thus, sciences of the mind and the brain can only provide evidence that in certain situations some folk psychological concepts – such as the concepts of belief or desire – apply. Pardo and Patterson do not claim, therefore, that science is irrelevant for the law, because in some situations it will provide better evidence pertaining to the mental states of the person than the folk psychological analysis of behavior. Still, they stress the primacy of the internal point of view in the explanation of behavior – at least for the purposes of the law. Psychological concepts – such as beliefs, desires, memories or intentions – apply only at the level of reason explanations, i.e. at the level of the whole person. They do not apply at the level of neuroscientific explanation.

47 Pardo and Patterson are certainly right to underlie the importance and distinctiveness of the folk psychological level of behavior explanation. It seems difficult to imagine how the legal image of man could look like if the conceptual tools of folk psychology were abandoned. At least at the present moment, scientific theories are unable to provide any counter-proposals in this regard. Still, these philosophers of law they overstate their claim that folk psychology provides the privileged criteria of ascription of folk psychological concepts. There are many levels of explanation of the mind and behavior and all of them can be crucial in the everyday and, especially, in the legal context. It is true that, in many cases, the behavioral criteria of psychological categories will suffice. However, there are situations in which, from the internal point of view, it will not be possible to ascribe correctly psychological concepts. Introspective confabulations provide strong evidence in support of this claim. In such situations it is necessary to acknowledge levels of explanation which are beneath the level accessible to consciousness.

  • 22 Squire 2010: 6-9.

48 An instructive example of an improvement of a folk psychological category due to scientific evidence pertains to the concept of memory. The folk psychological concept of memory is explicitly discussed by Pardo and Patterson in the context of their main thesis. They claim that it is nonsensical to ascribe memories to the brain as only person can remember. Amusingly, it is the study of the lesions of the brain which lead scientists to differentiate between different types of memory such as procedural memory, semantic memory and working memory.22 Scientific evidence suggests that distinct parts of the brain are correlated with these types of memories. It is not clear whether these types of memories can be differentiated using only behavioral criteria. Memory provides a revealing example of the explanatory strategy of the contemporary science. It is not the case that the folk psychological concepts are explained away – they are still prominent in the scientific, mechanical explanations of behavior – but they are further developed accordingly to the prevailing evidence.

49 The general strategy of Pardo and Patterson can be described as ‘conceptual conservatism’. The first goal of this strategy is to preserve, as far as it is possible, the present content of folk-psychology. The second goal of this strategy is to save the primacy of folk psychology for the legal worldview. It is claimed that, at least for the practical purposes of the law, the ordinary conceptual scheme pertaining to the mind should reign supreme. However, the claim that this conceptual scheme is independent from the scientific image of man seems to be just a modern version of Cartesian dualism – despite the fact that the authors of these claims explicitly reject Cartesian dualism. What is more, this a priori foundationalism is undermined by experimental evidence; for instance, the evidence pertaining to introspective confabulation. To this extent, folk psychology should be modified and, as a consequence, it ceases to be the measurement for the ascription of reasons – at least on their standard, causal understanding. This evidence strongly suggests that it is not the case that the internal point of view has an authority over other modes of explanation when it comes to behavior in the legal context. Taking the internal point of view can lead to mistaken analyses. To sum up, against the autonomy view of Pardo and Patterson, one can recall the following words of one of the most famous naturalist philosophers, David Hume:

  • 23 Hume 1748/1999: 208.

... could such dogmatical reasoners become sensible of the strange infirmities of human understanding ... such a reflection would naturally inspire them with more modesty and reserve, and diminish their fond opinion of themselves, and their prejudice against antagonists. ... And if any of the learned be inclined, from their natural temper, to haughtiness and obstinacy, a small tincture of [skepticism] might abate their pride, by showing them, that the few advantages, which they may have obtained over their fellows, are but inconsiderable, if compared with the universal perplexity and confusion, which is inherent in human nature. In general, there is a degree of doubt, and caution, and modesty, which, in all kinds of scrutiny and decision, ought forever to accompany a just reasoner.23

6 Integrationism

50Integrationism, similarly to the autonomy view, presupposes that reasons are genuine causes of thought and behavior. But the integrationist, as the revisionist, rejects the claim that reasons are a fundamental, independent aspect of the structure of the world. The integrationist claims that mental phenomena derive from – or supervene on – non-mental facts and properties of the world.

51 The proponent of integration of folk psychology with cognitive science might not be optimistic about the perspectives of finding conceptual bridge between the legal image of man and its scientific counterpart. The pessimistic integrationist might think that we’re still far from understanding folk psychology and its relation to the architecture of the mind, or that the relevant understanding will always remain beyond our reach – because mental phenomena are too complicated or we lack the ability to develop the right conceptual repertoire. Still, the integrationist will resist the fundamental claim which unites the revisionist and the autonomist. Namely, that anyone involved in the project of explaining how facts about the organization of behaviorally complex organisms, and facts about our actual practices of interpretation and ascription of propositional attitudes are connected is deeply mistaken. According to the integrationist, at least in principle there is a solution to this problem and to solve it one needs to look at the available evidence.

52 The rejection of integrationism is usually founded on the argument that it is a desperate idea to look for the linkage between the two images of a man. After all, all of the previous attempts have failed. In recent years, the view that the folk-psychological model of the mind imperfectly corresponds to its actual architecture seems to be questionable. Traditionally, the folk-psychological mental states are understood to have a strong connection to language – they are linguistically structured and, as a consequence, only language users possess them. If a creature behaves as if it possessed beliefs and desires, but it cannot talk about them, it is widely agreed that her behavior is not genuinely caused by mental states. Only when the mind of a creature is influenced by language, which enables it to be conscious of mental causes, she is intelligent enough to be able to recognize reasons.

53 That the connection of though and language has been prioritized should come as no surprise. After all, natural language is the only tool available to folk psychologists to examine mental states. These states they are purely theoretic and postulated by the common sense theory of mind. So, despite the fact that reasons are connected with both speech and action – one can read off persons reasons from what she is saying and what she is doing – it is the former connection which has been regarded as crucial.

54 The presupposition that it is the connection between thought and language which is constitutive for reasons is also evident in the argumentation of the proponents of the autonomy of folk psychology. It seems that they view the analysis of the natural language as the privileged mode of explaining the mind and behavior. This view has been very influential several decades ago, for instance due to the impact of Wittgensteinian meta-philosophy. However, at the present moment, this doctrine seems to be outdated. For most contemporary and empirically oriented philosophers and scientists, the dispute whether mental states are linguistically structured is of no significant importance as there have been changes in the conceptual environment of the research on the mind. At the present moment, mental states are rarely regarded as sentences in the language of thought – a hypothesis made by Jerry Fodor – which has been driving the research within cognitive scientists at its inception. It seems that only the less empirically informed philosophers claim that the past arguments of analytic philosophers are as strong as they were before.

55 The main problem with the classical approach is that it is of no use in regard to the study of the part of the mind which is completely or to a large extent unavailable for introspection. And, as it was already noted, this is the most important part of the mind in terms of its influence on thought and behavior. A systematic and interesting insight into the workings of the automatic, unconscious and fast operating part of the mind is possible only through experimental research. The results of this research can be, from the folk-psychological perspective, altogether arbitrary – as it is the case with the research on introspective confabulation. And it is only the tip of the iceberg of the automaticity revolution which has swept cognitive science in recent years.

  • 24 Robinson & Berridge 2003: 25-53.

56 In this context, it is worth to discuss the empirical evidence pertaining to other important, folk-psychological notions – namely desire and belief – which undermine their traditional understanding. Desire is usually understood as connected with an evaluation of a state of affairs. A person who desires something seeks to match the world with the content of desire and this content is regarded by that person as a reason for action – at least momentarily. However, there is evidence suggesting that the connection between desire and evaluation does not hold. The evidence in question comes from neuroscience and it advises to differentiate between what the person wants and what she likes.24 Evaluation – a reason giving process – is connected only with the latter as the former pertains to the incentives of the person. Still, the concept of desire is usually understood to be connected with both mental states. In the light of this research, it is implausible to infer a desire of the person – her reason for action – only on the basis of what has high incentive for her. To sum up, the discussed research suggests that the concept of desire pertains to two different types of mental states – and only ‘liking’ seems to clearly correspond to the folk-psychological meaning of this concept.

  • 25 Apperly & Butterfill 2009: 953-970.

57 Empirical research suggests a similar differentiation pertaining to beliefs. For a couple of decades since its inception in the late 1970’s, researchers generally assumed that typically only 4-year old and older children can have beliefs. This is because younger children fail to pass the so-called ‘false-belief task’ – a task designed to test whether a child understands that other persons may represent the world incorrectly. In the classical version of the test, the mindreading capacity of a child is evaluated on the basis of its answers to the questions of the experimenter. Younger children usually do not pass this test because they cannot yet speak or, when they already do, they usually automatically attribute their beliefs to other persons – even if it is clear that others could not know what they know. Recently, however, this general assumption pertaining to the onset of belief attribution abilities has changed. In an important study from 2005 it was shown that even children younger than 2 years behave as if they understood what beliefs are. This study was based on a nonlinguistic version of the false-belief task, focused on measuring the eye movement of participating children. It has been suggested by some that the simple, lower level, nonlinguistic beliefs do not transform into complex, higher level and linguistic beliefs but that – as the children reach the age of 4 – the lower level belief system remains operative and its functioning can be perceived when studying the adult mind.25

58 The goal of the above discussion is to argue that the folk-psychological categories are not autonomous, i.e. that the claim that they can be investigated only from the internal point of view is false. As the empirical evidence suggests, there are types of beliefs, desires or memories which are almost or to a large extent inaccessible from the internal point of view. Their characteristics may seem arbitrary from the internal point of view, e.g. the account of low level beliefs which are language independent. Still, these mental states remain causes of thought and behavior. Taking them into account in the legal image of man, and thus integrating it with its scientific counterpart, is one of the greatest challenges for integrationism. However, this view has significant advantage over revisionism and the autonomy view as it abandons their most radical and implausible components.

59 Taking into consideration the scientific image of man, according to which the mind consists in at least two basic structures – one accessible and the other inaccessible from the first person perspective – would constitute a first step in the integration of law with science. The second step is to develop a model of such an integration. This would allow for a global integration of law and science. Some insights as to how such model could look like come from cognitive science – an interdisciplinary endeavor to explain the mind – integrating such different disciplines as philosophy, psychology, neuroscience, anthropology, artificial intelligence and linguistics. In cognitive science, the general idea on how to integrate different types of evidence boils down to a differentiation between different levels of explanation. These levels may be more general, investigating the mind or the person as a whole – such as philosophy or psychology. They can also be more concrete, such as neuroscience or linguistics, focusing on a small aspect of the question how the mind – or the brain – works. What is important is that the levels of explanation are both interconnected and autonomous. The third step is local integration – pertaining to selected issues at the intersection of the legal and the scientific images of a man. These issues may include the problem of inclusion into the legal research the above mentioned evidence suggesting a differentiation between various types of folk psychological mental states usually regarded as homogeneous.

7 Conclusion

60In this paper it was argued that the discrepancy between the legal and the scientific image of man stems from the folk-psychological roots of the former. To be more precise, a crucial component of behavior explanation from the legal perspective – which is especially difficult to take into account from the scientific perspective – are reasons. To be even more precise, reason explanation assumes the rationality of the person whose behavior is the target of the explanation, and this assumption is implausible in the light of empirical evidence. One can identify at least three strategies of tackling this issue: revisionism, the autonomy view and integrationism. It was claimed that only integrationism provides a reasonable option, as the first two proposals are too far-reaching. As to revisionists, they seem to understand reasons instrumentally and this idea is difficult to accept in the legal context, e.g. in the context of the ascription of legal responsibility. Proponents of the autonomy view, on the other hand, argue for an independence of folk psychology from science, an idea inconsistent with the empirical evidence. Integrationism is not only a naturalistic view – as it does not shun the empirical evidence – but also capacious enough to truly take into account phenomena significant for the law. Despite its advantages, however, integrationism has its difficulties – one of the most important being the construction of a conceptual bridge between the legal image of man and its scientific counterpart.

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Notes

1 Andrews 2012: 7.

2 Malle 2004: 92-93.

3 Malle 2004: 111.

4 Dennett 1987: 52.

5 Malle & Nelson 2003: 563-580.

6 Evans, Newstead & Byrne 1993: 14.

7 Searle 2002: 33.

8 Hart 2012: 88-89.

9 Shapiro 2006: 1157.

10 Wegner 2002.

11 Wegner 2002: 70-78.

12 Wegner 2002: 78-90.

13 Wegner 2002: 90-95.

14 Storms & Nisbett 1970: 319-328.

15 Nisbett & Wilson 1977: 253.

16 Aronson, Wilson, Akert & Sommers 2015: 128.

17 Greene & Cohen 2004: 1781.

18 Craver 2007: 9.

19 Wason & Evans 1975: 141-154.

20 Pardo & Patterson 2013.

21 Greene & Cohen 2004.

22 Squire 2010: 6-9.

23 Hume 1748/1999: 208.

24 Robinson & Berridge 2003: 25-53.

25 Apperly & Butterfill 2009: 953-970.

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References

Electronic reference

Łukasz Kurek, « Naturalism and the legal image of man », Revus [Online], in print | 2017, Online since 01 September 2017, connection on 21 September 2017. URL : http://revus.revues.org/3871 ; DOI : 10.4000/revus.3871

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About the author

Łukasz Kurek

Department of Philosophy of Law and Legal Ethics, Jagiellonian University (Poland)

Email: l.kurek@uj.edu.pl

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