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Dualism and Doctrine

37 Pages Posted: 12 May 2014 Last revised: 23 Jul 2016

Dov Fox

University of San Diego: School of Law

Alex Stein

Brooklyn Law School

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Date Written: May 11, 2014


What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing doctrine pins the answer to all of these questions on whether the injury, facts, or evidence at stake are "mental" or "physical." The assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.

A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising from his mind, by contrast to his bodily injuries over which he exercises no control. The Fifth Amendment forbids the government from forcing a suspect to reveal self-incriminating thoughts as a purportedly more egregious form of compulsion than is compelling no less incriminating evidence that comes from his body. Criminal law treats intentionality as a function of a defendant’s thoughts altogether separate from the bodily movements that they drive into action.

This Essay critically examines the entrenchment of mind-body dualism in the Supreme Court doctrines of harm, compulsion, and intentionality. It uses novel insights from neuroscience, psychology, and psychiatry to expose dualism as empirically flawed and conceptually bankrupt. We demonstrate how the fiction of dualism distorts the law and why the most plausible reasons for dualism’s persistence cannot save it. We introduce an integrationist model of human action and experience that spells out the conditions under which to uproot dualism’s pernicious influence within our legal system.

Keywords: Dualism, Mind vs. Body, Descartes, Criminal Law, Intent, Mens Rea, Torts, Emotional Harm, Emotional Harm vs. Physical Harm, Self-Incrimination, Testimonial Evidence vs. Physical Evidence, Evidence, Presumptions

Suggested Citation

Fox, Dov and Stein, Alex, Dualism and Doctrine (May 11, 2014). Indiana Law Journal, Vol. 90, 2015, pp. 975-1010; San Diego Legal Studies Paper No. 14-153; Cardozo Legal Studies Research Paper No. 431. Available at SSRN:

Dov Fox

University of San Diego: School of Law ( email )

5998 Alcalá Park
San Diego, CA 92110
United States
(619) 260-4600 (Phone)


Alex Stein (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States
718-780-0615 (Phone)

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