Dualism and Doctrine

Philosophical Foundations of Law and Neuroscience 105-136 (Michael Pardo & Dennis Patterson ed., Oxford University Press, 2016)

San Diego Legal Studies Paper No. 16-222

Brooklyn Law School, Legal Studies Paper No. 465

34 Pages Posted: 22 Jul 2016 Last revised: 7 Sep 2016

Dov Fox

University of San Diego: School of Law

Alex Stein

Israel Supreme Court

Multiple version iconThere are 2 versions of this paper

Date Written: July 20, 2016

Abstract

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 law pins the answer to all these questions on whether the injury, facts, or evidence at stake are “mental” or “physical.” This key 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: Descartes, dualism, mind-body distinction, self-incrimination, intent, criminal intent, torts, emotional harm, evidence, criminal procedure, Fifth Amendment

Suggested Citation

Fox, Dov and Stein, Alex, Dualism and Doctrine (July 20, 2016). Philosophical Foundations of Law and Neuroscience 105-136 (Michael Pardo & Dennis Patterson ed., Oxford University Press, 2016); San Diego Legal Studies Paper No. 16-222; Brooklyn Law School, Legal Studies Paper No. 465. Available at SSRN: https://ssrn.com/abstract=2812293

Dov Fox

University of San Diego: School of Law ( email )

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

HOME PAGE: http://www.sandiego.edu/law/news/news_releases/newslist.php?_focus=44957

Alex Stein (Contact Author)

Israel Supreme Court ( email )

Sha'arei Mishpat Street
Jerusalem, 9195001
Israel
972-2-6759743 (Phone)

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