Gazzaniga on justice: splitting the person from the brain

Michael Gazzinaga can be precise and thorough and as academic as the next neuropsychologist — but he was anything but in his presentation to an Edge conference on the effects of brain research on justice.

In his fast-paced and rambling comments — Gazzinaga himself called them “tachistoscopic” — he presented his current thinking on the utility of neuroscience in the justice system. And while doing so, he offered a view of the basis of justice that goes all the way back to John Locke.

An early aside: I am currently taking a continuing ed course called “Classics in Political Thought,” and we have just finished our alloted two hours on Locke’s Second Treatise of Government. The conjunction between Gazzinaga’s musings and Locke’s writing more than three centuries earlier demonstrates once more the pleasure and efficacy of reading widely, even if not deeply. Back to the topic.

Gazzinaga’s interest in justice springs from his four years as head of the MacArthur Law and Neuroscience project. It’s on the basis of that experience that Gazzinaga concludes that neuroscience is nowhere near ready competently to inform the justice system on the culpability of defendants who may have committed their offenses in one or another specific brain state (what we have long called, less rigourously, “state of mind”):

[H]ere is a dynamical system that is constantly in change. Given that, how can even neuroscientists begin to think that they can capture what somebody’s brain state was six months ago or a year ago or six years ago when they committed a particular crime?

Gazzinaga’s answer is a clear no — brain science is getting better at eavesdropping on and identifying brain states, but that in no way amounts to the ability accurately to describe a set of long-past and unrecorded mental conditions. That’s well beyond the competence of today’s science, despite the enthusiasm for neuroscience-based justice reform expressed by people from Richard Dawkins to David Eagleman.

Of more interest to me was the second part of Gazzinaga’s remarks, in which he turned from a breathtakingly short summary of the current research to more philosophical musings about the notion of justice and how that idea may be threatened or altered by our growing awareness of the mostly unconscious and entirely physical processes of what I call “my” mind.

This philosophical issue is at the core of Gazzinaga’s latest book, Who’s In Charge: Free Will and the Science of the Brain, which will be published Friday (November 11).

In his Edge remarks, Gazzinaga notes that, for many people, describing a person as the result of an interior narration of the inputs of a series of brain states removes the most salient parts of the definition of the word “person.” If “I” am the output of my brain, is there really anybody in here? And can anything “I” do reasonably be held to be down to me? To be my responsibility? Where’s the answer?

We don’t mind and we understand that clocks are automatic. We don’t mind and we understand that cells are automatic. But we go absolutely nuts when people suggest brains may work in an automatic way. And so how do we get out of this dilemma? How do we get out of this notion that this dynamical system, as complicated as it is, is working sort of like a Swiss clock.

This is, of course, part of the endless debate between determinism and free will — and Gazzinaga is not shy about taking a position on the issue. In an effective analogy, Gazzinaga argues that “cars are automatic, and yet cars with all their determinism that we can specify, in no way tell us about traffic.”

In other words, Gazzinaga claims, “When you want to think about the problem of responsibility, you should just get rid of the idea that responsibility arises out of brains. It arises out of people.”

He continues:

We know that brains enable minds, and that you have this vastly parallel distributed brain and this narrative system in there keeps your story going, so there are no ghosts in the system, that Steve has written so elegantly about … so then it gets down to, so what does it mean to be free?

For Gazzinaga, the key question is, “Free from what?”

What do you want to be free from? You certainly don’t want to be free from the physical chemical processes of the world, you want your arm to do what it does when you tell it, when it goes out there, you don’t want it to go over there when you want it to go over here. And so the whole notion, I think, there’s a realization for me, that the whole notion of this free will and the brain and determinism has been miscast.

Gazzinaga’s solution is completely to accept the physical nature of the mind, of the “self,” while at the same time recognizing that our physical selves operate in dynamic social systems. Just like traffic, our notion of justice is not about just solitary physical entities. Rather, justice is a function of our social groupings:

Brains are automatic. But our freedom and our sense of personal responsibility come from the interaction, the social interaction, the glue of the environment, of the social grouping. And that’s where you look for responsibility, and that’s why even though we are these finely tuned machines and narratives and all the rest of it, we hold people responsible because that is the nature of the social exchange between people, and that’s how you should look upon responsibility.

For Gazzinaga, asking how much free will we have is the wrong question, for we do not act in isolation, freely or not, and our purpose in imposing and enforcing laws is a necessary outcome of our existence as social animals. In this argument, Gazzinaga asserts that a rational justice system should have no purpose other than to further the order and functionality of civil society. (This is where he sounds like John Locke.)

In other words, justice is not a reflection of divine law, or divine right, or primitive drives for revenge. Justice is the result of a social dialogue, of a rational determination of the goals of human society and the best ways to achieve them.

At the end of Gazzinaga’s Edge remarks, there is a short Q&A with Steven Pinker; psychologist and Nobel Prize in Economics winner Daniel Kahneman; and evolutionary psychologist Leda Cosmides, and her anthropologist husband, John Tooby.

Pinker points out that “a lot of our intuitions about responsibility as they’ve been played out as criminal justice has been refined, as we no longer hang seven year old girls as they did in England in the 18th century, we no longer punish animals, we no longer punish tools which used to be done in the French legal system.” He argues, like Locke, that our sense of responsibility needs to be informed by our desire for deterrence.

Pinker says:

We’re converging on the idea that the whole point of criminal punishment is really to deter those creatures that can be deterred. So you don’t punish kids because we figure a contingency whereby kids are thrown in jail won’t really register with kids because they’re too immature; we have an insanity defense which more or less coincides with the ability to be deterred by a threat of criminal punishment; we mitigate punishment in the case of crimes committed in the heat of passion, not a coincidence that those are exactly the circumstances in which the threat of being punished is less likely to inhibit behavior.


And so it seems to me, we could actually keep responsibility without any mystical belief in free will or cosmic balancing the scales. We could realize that what responsibility really is converging toward is deterability, namely, the use of punishment to proactively reduce kinds of behavior we would like to reduce.

Kahneman brings in the notion of hard-wired moral emotions and the role of an inborn desire for retribution: “You know, we have those primary intuitions about what we are and what other people are, and then there are the facts of the matter, and we are going to keep our intuitions. And the facts of the matter will be there. And we attempt to reconcile, but we never will be successful at reconciling.”

In this view, it’s not too far off base to suggest that some of the opposition to the new neuroscience is the fear that if there is no free will, we can’t impose a moral judgement on the behaviour of others. It’s one thing to be rational and act to preserve the order and civility of society. It’s quite another to satisfy our primitive desire to get even.

And until there is, indeed, some way of reconciling these two stances, it won’t really matter what the neuroscience says.

2 thoughts on “Gazzaniga on justice: splitting the person from the brain

  1. I may have missed something, but it sounds like Gazzinaga is suggesting that we may not have much freedom to ‘choose’ our actions, since he thinks the mind/brain works somewhat deterministically (e.g. the Swiss Clock thing), though he also seems to suggest that our civilized social rules will collectively shape what we see as right or wrong and ‘program’ us accordingly. If this is how he sees it, then is our justice system or social programming to blame when someone commits murder? Is the individual person free from responsibility? I may have missed something, but that sounds like what he might go with it. The reason why we don’t hold children morally responsible is because they are still developing their PFC – the part of the brain that allows us to inhibit responses and choose among alternatives. Though we are not ‘free’ in a causal sense, I believe we are to a large degree, though not always, free to choose our actions. This is consistent with my reading of the neurobiology.

    As to the evolutionary psychologists – bollocks. I have no patience to hear about how we are hardwired for this or that socio-cognitive function without any kind of substantial evidence to back up their claims. They do not like the idea of a general-purpose mechanism capable of ‘choosing’ because they assume the mind is made up of countless discrete programs selected through evolution. I have an article critiquing ev psych in the works – I will be submitting it for publication in the next two weeks and will also post a rough draft on my website if you are interested in my thoughts on that matter.

    Thanks for the summary here – interesting to keep on top of what others are saying.

    • I don’t see anything ev-psych-y in Gazzinaga’s EDGE remarks, but of course I haven’t read the book, which isn’t available yet.

      His remarks suggest that he considers the brain mostly unconscious, but not rigidly modular: “it’s a 24/7 brain, it’s always going on, it’s always changing, patterns of activation are constantly shifting around.”

      I look forward to a longer version of your criticisms of evolutionary psychology!

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