Via Dr. Helen, I found this very disturbing analysis of the "science" of neurolaw. (I use the word "science" advisedly, for phrenology was once called that, and sociology still is.)

What neurolaw proposes is basically scrapping the criminal justice system as we know it and dispensing with the idea of punishing crime or criminals. That's because criminals have no control over their actions at all; instead their actions are simply the product of their brains' neuronal discharges -- and that therefore scientists should take charge of what we erroneously think of as criminal justice.

...[N]eurolaw talk embraces the promise of changing minds by changing brains through a therapeutic model of criminal justice which views retributive punishment as inhumane but classifying and modifying brains by the state as a great triumph of rehabilitation. As one leading scholar suggested, there is no real difference between prison and lobotomy.27

This credulous fervor for neurolaw hides its secret ambition. Those who view desert as an improvident distributive theory of punishment are many, but few suggest dispensing with the criminal justice system wholesale. Yet much of the neuro-person model's construction of culpability lies with the view that crime itself is a mental illness and not behavior of lawless citizens. 28 Crime is considered the product of impaired brains and scientists as best suited for handling criminal justice policy, not lawyers. Once crime is understood as a behavioral problem rooted in the impaired brains of many unfortunate citizens, ameliorating crime will properly involve civil remedies instead of criminal ones. Therapeutic justice has already made substantial inroads under the reasonable view that criminal justice policy should encompass provisions which reduce offender recidivism. But in doing so, therapeutic justice seems all too eager in jettisoning the adversarial system of justice in place of one which values intervention at the cost of adversarial rights and individual liberty. The very nature of the criminal justice system as one entrenched in laws which restrain government is quite foreign to therapeutic justice. And that is troublesome given the emerging rise of the therapeutic state.

Who gets to decide even what should be a crime?

Under what theory do the neurolaw scientists imagine that they have any special say-so? Are they not also just masses of firing neurons which cause them to sputter these theories? Isn't their desire to control other people evidence of yet another form of mental illness just as beyond their control as the conduct of criminals? Surely they don't argue that only criminals lack free will.

Yet inexplicably, neurolaw science talks of "intervention" and "prevention" -- by neuroscientists themselves!

...[M]uch of the neuro-person model's construction of culpability lies with the view that crime itself is a mental illness and not behavior of lawless citizens. 28 Crime is considered the product of impaired brains and scientists as best suited for handling criminal justice policy, not lawyers. Once crime is understood as a behavioral problem rooted in the impaired brains of many unfortunate citizens, ameliorating crime will properly involve civil remedies instead of criminal ones. Therapeutic justice has already made substantial inroads under the reasonable view that criminal justice policy should encompass provisions which reduce offender recidivism. But in doing so, therapeutic justice seems all too eager in jettisoning the adversarial system of justice in place of one which values intervention at the cost of adversarial rights and individual liberty. The very nature of the criminal justice system as one entrenched in laws which restrain government is quite foreign to therapeutic justice. And that is troublesome given the emerging rise of the therapeutic state.

Trust the experts? I would maintain that people who believe in "trusting the experts" are suffering from just another form of mental illness, as are the experts they trust.

This is complete nonsense, and someone needs to call these people on it lest they get legislation passed while no one is looking.

I won't deny that they have an interesting philosophical argument, but over the years I have wasted many hours with people advancing similar arguments. Ultimately, whether we are all just chemicals and neurons firing leads itself to metaphysical debates over the meaning of existence. Do you exist? Do I exist?

Interesting, but not grounds for overturning the legal system. Or scrapping the Constitution (which would be required if neurolaw is to have their way). But I worry that this isn't just a late night philosophical debate of the sort I used to engage in Berkeley; these folks seem as determined as they are deterministic:

The foundational walls upon which [cognitive neuroscience] rests hold unwaveringly to the tenets of classical physics, reductive materialism, and hard determinism. Implicit in this model is the notion that, in time, all human experiences will be accessible by various physical apparatuses designed to explore the brain, that all mentation will be measurable by these devices, and accurate predictions of future behavior by way of brain activity can be made solely by understanding the material properties of the brain. Other theories abound but most hold to the immutable premise that people direct their behavior at least some of the time. Even under the subterfuge of the unconscious, psychoanalysis claimed that people acted because they had reasons - even when they were unaware of them.40 While alternative psychological theories hold to some of these premises, cognitive neuroscience confidently suggests our perception of personhood grounded in the sense that we choose how to act is false and untenable.41 Instead we are automatons, fooled by a belief in goal-directed behavior that we perceive is under our control but is entirely the product of forces set into motion long before our existence.42 That we may believe that we prefer and choose to indulge in chocolate ice-cream over vanilla is an illusion; instead, we are a passive audience to the electrical cadence of neuronal firings buried deep within our heads.4

At the least we are fools under the direction of our selfish genes;47 at the worst our identity is utterly an illusion.48 The very notion of human agency - that people evaluate their environments, make choices, and impose those choices in the world - is entirely incompatible with the cognitive neuroscience theory of personhood.49 The very idea that people are mere passive observers of the world in which they occupy is no recent development. And that view has serious implications for theories of culpability and responsibility so fundamentally rooted in most legal systems.

[M]oral thinking and behavior is merely a product of neuronal discharges inside the ventromedial prefrontal cortex of the brain - and nothing more.94 They are, as two preeminent neuroscientists put it recently, "not mere correlates but are the physical bases of these aspects of our personhood."95

This almost makes me inclined to revert to a strict Freudian view of things. Funny that the other day I'd be blogging about what I called "sexual freedom" -- only to wake up today and see this monstrosity staring me in the face. These people care not a hoot about sexual freedom. They don't believe anyone has any right to be straight or gay or any of that stuff. In fact, they don't even believe that there is such a thing as freedom.

I hope I won't live long enough to see them get their way.