As you sit reading this, you probably experience an internal voice, unheard by any outsider, that verbally repeats the words you see on the page. That voice (which, in your case, speaks perfect English) is part of what we call your conscious mind.
And the physical organ that causes what you see on the page to be simultaneously voiced internally is what we call your brain. The scientific study of how the brain relates to the mind is what we call cognitive neuroscience.
The brain is an incredibly complex organ, and for most of modern history it has defied serious scientific study. But the development in the past few decades of various technologies, collectively called “brain scans,” that enable us to trace certain operations of the brain have considerably increased our knowledge of how its activities correlate with various mental states.
The law, for its part, is deeply concerned with mental states, particularly intentions. As Justice Oliver Wendell Holmes Jr. famously put it, “Even a dog distinguishes between being stumbled over and being kicked.” Distinctions of intent frequently determine, as a matter of law, the difference between going to prison and going free. Cognitive neuroscience thus holds out the promise of helping us to perceive, decide, and explain how intentions are arrived at and carried out. In theory, therefore, cognitive neuroscience could have a huge impact on the development and refinement of the law.
But there is reason to pause. Cognitive neuroscience is still in its infancy, and much of what has so far emerged that might be relevant to the law consists largely of hypotheses that are far from certainties. The natural impulse of forward-thinking people to employ the wonders of neuroscience in making the law more “modern” and “scientific” needs to be tempered with a healthy skepticism, or some dire results are likely. Indeed, the history of using “brain science” to alter the law is not a pretty picture. A few examples will illustrate the point.
In the early twentieth century, a leading “science” was eugenics,…
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