Violence on the Brain: A Critique of Neuroscience in Criminal Law
44 Wake Forest L. Rev. 183 (2009)
48 Pages Posted: 30 Mar 2008 Last revised: 11 Mar 2014
Date Written: 2009
Is there such a thing as a criminally “violent brain”? Does it make sense to speak of “the neurobiology of violence” or the “psychopathology of crime”? Is it possible to answer on a physiological level what makes one person engage in criminal violence and another not, under similar circumstances?
Current research in law and neuroscience is promising to answer these questions with a “yes.” Some legal scholars working in this area claim that we are close to realizing the “early criminologists' dream of identifying the biological roots of criminality.” These hopes for a neuroscientific transformation of the criminal law, although based in the newest research, are continuous with a long-standing history. Criminal law and neuroscience have been engaged in an ill-fated and sometimes tragic affair for over two hundred years. Three issues have recurred that track those that bedeviled earlier efforts to ground criminal law in brain sciences. First is the claim that the brain is often the most relevant or fundamental level at which to understand criminal conduct. Second is that the various phenomena we call “criminal violence” arise causally from dysfunction within specific locations in the brain (“localization”). Third is the related claim that, because much violent criminality arises from brain dysfunction, people who commit such acts are biologically different from typical people (“alterity” or “otherizing”).
This Article first demonstrates parallels between certain current claims about the neurobiology of criminal violence and past movements that were concerned with the law and neuroscience of violence: phrenology, Lombrosian biological criminology, and lobotomy. It then engages in a substantive review and critique of several current claims about the neurological bases of criminal violence. Drawing on research and interviews with neuroscientists, this Article shows that causally localizing what we call “criminal violence” to bits of the brain is scientifically contestable and epistemologically untenable. In viewing the criminal law-neuroscience relationship through the lens of history of science, this Article hopes to offer a constructive portrait of how current neuroscience might inform criminal law discourse about regulating violence.
Keywords: criminal law, neuroscience, neurolaw, violence, history of science
JEL Classification: K14, K23
Suggested Citation: Suggested Citation