In Minds, Brains, and Law: The conceptual foundations of law and neuroscience, Michael S. Pardo and Dennis Patterson explore scholarly knowledge of the human mind and brain (e.g., dualism versus materialism) and its implications for the law. As a result, their analytical work begins with cognitive neuroscience (i.e., an investigation of the functioning and structure of the human brain as they relate to mental functions, processes, and structures). Their book can be characterized as a well-developed attempt to focus readers’ attention on conceptual issues and put empirical, practical, and ethical matters on the back seat. In fact, the authors compellingly emphasize the pressing need to define clearly the content, boundaries, and scope of the multitude of concepts that refer to phenomena of the mind. The ultimate goal is to promote conceptual clarity, accuracy of use of conceptual knowledge in cognitive neuroscience, and sensible application to the law (including issues of legal proof, theory, and doctrine).

Pardo and Patterson describe their analytical work as “corrective”. The aim of accuracy at the conceptual level generates a series of sensible questions that reluctantly spill over empirical matters (e.g., the reliability and validity of instruments used to collect data) and practical matters (e.g., the quality of behavioral and neurological data used by the law and public policy). For instance, imagine a study on guilt and shame that relies on functional Magnetic Resonance Imaging (fMRI) or Event-Related Potential (ERP) techniques. If the feelings of guilt and shame are linked to different patterns of brain activity, can the identified patterns be said to constitute the emotions to which they are temporally correlated? Can this assumption be made without a well-defined description of what constitutes guilt and shame and without reliable and valid independent evidence that indeed participants are experiencing either emotion? To what extent is fMRI or ERP evidence useful to assumptions about neural correlates of distinct emotions if it largely consists of averages of activation gradients? Please note that both shame and guilt are internal events that currently can only be revealed by verbal reports of introspection or inferred from other behaviors. Therefore, evidence collected through both verbal reports and observations of behavior is not only susceptible to biases, but also likely to be as correlational in nature as the brain states illustrated by fMRI scans and ERP waveforms. Since both behaviors and neurological changes are correlated to psychological states that require definition (understanding), then both types of evidence merely corroborate each other. Neither is in essence any of the psychological states that are under investigation. Furthermore, the assumption that a cause-effect relationship between two events exists requires that changes in one event (e.g., brain states) can be demonstrated to occur before other changes (e.g., the experience of guilt or the action of verbally expressing one’s feeling of guilt). Even if this temporal chronology can be unequivocally demonstrated through technologically advanced brain scanning techniques that have overcome current reliability and validity concerns, the key issue for Pardo and Patterson remains conceptual (i.e., how can guilt and shame be appropriately and clearly defined?).

The authors offer a plethora of instances for which the distinction between psychological (phenomena) and neurological phenomena (a key conceptual matter) is warranted. Yet, the vagueness of human language as a tool for defining such psychological phenomena is a concern that lingers in the background of their narrative. Furthermore, although undeniable that the separation of conceptual and empirical issues is important, also clear are concerns regarding empirical matters yet to receive adequate resolution.  As a result, the two issues are so interwoven that the authors’ elegant attempts at separation have the same outcome as parental attempts to distance two teenagers in love. Of course, besides concerns about how to conceptualize neural correlates, applications to real-life settings (i.e., practical issues) offer challenges to scholars and practitioners alike. For instance, to what extent is the distinction between guilt and shame in an alleged culprit relevant to sentencing in a court of law? If relevance is present, is the conceptualization of either emotion in the jargon of legal doctrine and theory different from that currently used in cognitive neuroscience? To what extent can behavioral and neurological evidence from experiments (i.e., controlled conditions) on emotional states, such as guilt and shame, generalize to courts of law? Overall, will translation errors occur? If so, to what extent will such errors affect due process?

Of course, issues involving correlational evidence, alleged isomorphism of neural and mind matters, and implications for those who handle legal matters in courts of law become even more complex and cumbersome when clinical diagnoses are examined. Consider, for instance, the diagnosis of antisocial personality disorder. This disorder consists of a constellation of behaviors and cognitions that collectively serve as markers of a form of psychopathology not foreign to scores of defense and prosecution attorneys, judges, and jurors examining criminal cases. Not only the content of the diagnosis has changed through time, but also doubt and criticism have plagued the reliability and validity of key diagnostic criteria and related assessment tools, thereby making clinical and judicial applications likely targets of widespread controversy.

In general, the nature of psychopathology, as an array of murky and contentious concepts related to the malfunctioning of the human mind, adds to the complexities of analyses of the neural substrates of psychopathology conducted by clinical neuroscientists. Even if functionally and/or structurally the brains of individuals who have committed serious crimes differ from those of control subjects, how can such differences be understood and interpreted? How can conceptual and practical conundrums be addressed to avoid controversies and ensure fairness in applications to the judicial and criminal justice system? Clearly, conceptual issues (i.e., accurate and precise definition of psychological phenomena) are at the foundations of good psychological science. However, the language used attempting to address them may resist transparency, whereas weaknesses of current technology question the quality of data collected. As a result, scientists in the field of psychological science and experts in legal theory and doctrine face non-negligible obstacles if their task is to develop an unbiased understanding of psychological phenomena (including internal experiences, brain changes and behaviors) in applied settings.

Conceptual analyses, as those entertained by Pardo and Patterson, are undoubtedly useful to scholars and students interested in the less-than-optimal fit to legal matters that theoretical knowledge and findings in developmental, cognitive and clinical neuroscience exhibit. At the very least, such analyses bring to the forefront important issues (e.g., can the mind be reduced to the brain so that mental attributes are defined and explained by brain activity?), but not obvious solutions. The authors’ narrative is probing and engaging, thereby making Minds, brains, and law: The conceptual foundations of law and neuroscience a valuable read for those interested in challenging their viewpoint and submitting it to sharp critical analysis. Ultimately, the individual reader need not agree with the approach taken by Pardo and Patterson, but he/she will certainly benefit from the challenges their work offers to his/her current modus operandi.

© 2016 Maura Pilotti

Maura Pilotti, Ph.D., Ashford University