The End of the Law? Law, Theology, and Neuroscience

Abstract

THE END OF THE LAW? Law, Theology, and Neuroscience by David W. Opderbeck. Eugene, OR: Cascade, 2021. 260 pages. Paperback; $31.00. ISBN: 9781498223898. *"It's not you but your brain." As this powerful meme has begun to characterise our generation, we encounter children under neurological treatment for their behavioral/mental deficits and seniors losing their self-identity due to neurological degeneration. It is indeed evident that our mental experiences are bound to our brain states--yet are we really nothing else than our brain? Many intellectuals of our day argue so--our psyche is an epiphenomenon of our brain state, and so we have no free will. *Recent advances in neuroscience, especially with non-invasive neuroimaging techniques enabling scientists to "read out" one's decision ahead of a person being consciously aware of their own decision, have underpinned a new movement called neurolaw. According to neurolawyers, humans are no longer legally or morally accountable for their behaviors as science leaves no room for the existence of free will; consequently, law should be re-oriented from retribution to treatment of criminals. Indeed, neurolaw seeks "to explain and reform the legal system from the ground up based on neuroscience" (p. 2). Despite, or because of, its radicality, the neurolaw movement can be an attractive alternate to the legal tradition of Western civilization, which is rapidly losing its Greco-Roman/Christian foundations in law and ethics. It is also in line with the trend that our contemporaries increasingly seek justice through facts/science and empathy instead of transcendent values and rationality. *Although neurolawyers optimistically hope that this shift will lead our world from conflicts in subjective values/beliefs to facts of science, and from moral retribution to humane treatment of criminals, in this book Seton Hall University Law School Professor David Opderbeck carefully considers their optimism legally, philosophically, and theologically--and concludes that, with no place for transcendence, their optimism is misplaced. Neurolaw's reductionism loses not only the place of personal responsibility in law and jurisprudence, but loses a rich and complex understanding of human nature and relationality. Opderbeck argues that theology can defend the transcendence of law and human morality, without losing its integrity to science, by understanding the laws of nature as empowering nature to fulfill its telos--its divine purpose. This move is key to a unified epistemological view on science and law, such that human-made laws empower humans with freedom and personhood--physically, legally, and morally. Consequently, the author reframes positive law (i.e., human-made law) as calling humans to the divine law of love. *In the first three chapters, Opderbeck illustrates how Western law made the historical shift from its foundational transcendent values, through legal positivism, to neurolaw. Contrary to the contemporary jurisprudential trend, the four rudiments of Western law, i.e., Ancient Greek, Roman, Hebrew, and Christian jurisprudence, commonly state that positive law has transcendent sources and is preceded by the ideal of law or universal moral principles (chap. 1). In contrast, today's Anglo-American legal scholarship, dominated by legal positivism and instrumentalism, removes transcendent grounds for law, replacing it with a hope that economics and science can guide the law by providing a measurement of "good" and predictions of its outcome (chap. 3). The current reductionist trends in neuroscience paint this picture with a greater hope by revealing detailed biological determinants of human behavior. *In chapters 4 and 5, Opderbeck provides a methodological basis for his analysis in the later chapters. He favors critical realism and fides et ratio approaches as they permit separate and yet complementary research in the two domains. He then demonstrates how together these can help to uncover the meaning of the law from the facts of paleoanthropology and sociobiology. Whereas sociobiologists such as David S. Wilson suggest that the contingent evolution of social orders in animals indicates that law is a construct with no transcendence, Opderbeck highlights the emergence of unique human cognitive abilities such as abstraction, language, and writing, which he argues enable the law to transcend the social orders observed in other species. *After showing that the facts of paleoanthropology and sociobiology can be interpreted differently from a materialist view, Opderbeck continues his philosophical criticism of the reductionism/materialism on which neurolaw is based (chap. 6). He points out that the fields of neuroscience and the philosophy of mind retain positivist assumptions. The author then identifies three problems in materialistic/reductionistic/positivist views of the law. First, reductionism cannot provide a coherent epistemological ground to make a truth statement since reason and consciousness are only illusory. Second, neurolaw proposes social engineering toward achieving behavioral normalcy in the population, but this leads to obscurity in value judgement--and, more seriously, to totalitarianism. Finally, materialism easily leads to nihilism. *Opderbeck's theological vision (and counterproposal to neurolaw) is uncovered in the last three chapters of the book. In chapter 7, he discusses the ontology of the human mind and free will. For this, he rejects the nonreductive physicalism of theologians such as Nancey Murphy and Robert van Gulick. He then finds more promising a neo-Aristotelian, teleological understanding of natural law as "powers and capacities" that emerge within nature (p. 173). These, rather than deterministic neurobiological rules, can be key to theological synthesis of science and law. To him, this view not only provides a plausible causal or explanatory framework but requires complementary room for transcendence: God's trinitarian, perichoretic transcendental love provides the telos for creation, and so the purpose of positive (human-made) law is to fulfill this transcendental telos through the "powers and capacities" of natural law *Opderbeck then assigns his last chapter to an applied problem, namely the problem of violence in the enforcement of law. Indeed, this issue appears to be one of the most important motivations for neurolawyers: neuroscience seeks to transform the means of law enforcement from retributive violence to more humane, neurological treatment. Nonetheless, through discussions of Pascal, Derrida, and Agamben, the author demonstrates that the law cannot bring justice without violent enforcement. Therefore, by forgoing divine transcendence it is impossible for neurolaw to overcome the problem of the violence of law. Opderbeck thereby puts forward the necessity of Christian teleology for an ultimate hope. Law is not a matter of deterministic rules but of love and life, and law is not of enforcement but empowering. What makes humans is not our capacity to make free choices but to be free to love and live; this is our telos. *The End of the Law? is a scholarly interdisciplinary book, which crosses over the philosophies of law, mind, science, and theology in order to challenge or re-orient the current dominance of legal/scientific positivism, reductionism, and physicalism among intellectual groups. This dense book suits those who are already exposed to philosophical analysis on some of these topics (or, for readers unfamiliar with some of this terrain, but willing to do some background reading). Despite the degree to which it engages questions in philosophy, the book ultimately seeks to re-orient the law around Trinitarian theology. As this will limit its plausibility in public legal spheres, I do wonder if the philosophical argument could have been further developed for those who do not hold to Trinitarian theology (or any theology). *As a neuroscientist I would add one further note. There is little interest within neuroscience today in the problem of free will. In fact, students are discouraged from studying the question, as it is considered an unsuitable subject for scientific investigation. Most of us stay "scientifically agnostic," although individual scientists have their own philosophies or perspectives. Given that neuroscience is still restricted to a deterministic regime, free will can only be falsifiable but not verifiable, because it is widely considered beyond the laws of nature. It is, therefore, not surprising that one finds only evidence against free will, which comes from the epistemological constraints of the discipline of neuroscience today. I strongly suggest that proponents of neurolaw scrutinize at what point neuroscience reaches its methodological limits before assuming a particular ontological interpretation of experimental results to be "neuroscientific" or even unfalsifiable. The neurolaw program appears to be built without adequate recognition of these interpretive limits within neuroscience, no doubt due to its positivist assumptions. Overall, in Opderbeck's book readers will encounter rich and complex discussions across different fields integrating law, science, and theology. Although Opderbeck writes from a Roman Catholic perspective, this book does not feel like an in-house discussion--his foundational arguments are rooted in classical Trinitarian metaphysics and Protestants willing to work through Opderbeck's conceptually dense discussions will find much of value in this work. *Reviewed by Kuwook Cha, postdoctoral fellow in the Department of Physiology, McGill University, Montreal, QC H3A 0G4.