Why neuroscience matters for law

Abstract

This chapter explores how the advances of neuroscience matter to the law. The American tradition of Legal Realism justifies using the lessons of science in formulating policy and doctrine in order to create a better society. Neuroscience has expanded our understanding of the sequence of stimulus, thought, and behavior that is central to how legal rules are designed and applied. While some efforts to put neuroscience to work in law have been more successful than others, the successes are sufficient to validate the core premise that the insights of neuroscience can be useful. Two subjects illustrate this: criminal responsibility and civil capacity. The responsibility discussion has often gone down the wrong road, getting tangled in considerations of free will that are not, in fact, the basis for the existing legal standard. The civil law standard of capacity, which is at the heart of the law of consent, is a more promising target. With realistic expectations, neuroscience has a definite role to play in legal scholarship, doctrine and even individual cases.