Considering Pathological Altruism in the Law from Therapeutic Jurisprudence and Neuroscience Perspectives

Abstract

One of the most important legal theoretical developments of the past two decades has been the creation and dynamic growth of therapeutic jurisprudence (TJ). TJ presents a new model by which we can assess the ultimate impact of case law and legislation that affects mentally disabled individuals, studying the role of the law as a therapeutic agent, recognizing that substantive rules, legal procedures and lawyers' roles may have either therapeutic or anti-therapeutic consequences, and questioning whether such rules, procedures, and roles can or should be reshaped so as to enhance their therapeutic potential, while not subordinating due process principles. In recent years, scholars have considered a vast range of topics through a TJ lens, including, but not limited to, all aspects of mental disability law, domestic relations law, criminal law and procedure, employment law, gay rights law, and tort law. At the same time, legal scholars have also turned their attention to the relationship between neuroscience and the law, mostly, but not exclusively, in the contexts of criminal law and procedure.

A significant amount of the legal attention paid to altruism-related issues has come in the area of organ donation law and the potential exculpatory impact of certain clusters of behavior ('syndromes') on criminal responsibility (e.g., battered spouse; cultural defense), both of which potentially pose questions of pathological altruism. In this chapter, I consider both of these topics from a TJ perspective, and will also speculate on the potential of recent neuroscience-and-the-law findings on future legal developments in these areas. I conclude that TJ and neuroimaging are valuable tools in this consideration: TJ gives us a benchmark by which we can assess whether the pathological altruist (if, indeed, the altruist is pathological) has sacrificed her dignity to do the putatively pathologically altruistic act, an assessment process that can also illuminate whether the underlying behavior is irrational or self-harming. Neuroimaging and neuroscience give us new tools to potentially assess whether the pathological altruist is a rational moral agent in doing such acts. These tools may help illuminate our further and deeper understanding of these issues, and may give us new insights into why people do engage in such actions even when they appear to be self-defeating as well as self-destructive.

Keywords: Therapeutic jurisprudence, cultural defense, organ donation, dignity, voice, criminal procedure, evidence, competency