It’s two months since Professor Goldberg’s reply to my reply to a section of a section of Dennis Patterson and Michael Pardo’s awesome new book about the conceptual foundations of law and neuroscience.
Time flies, and tomorrow I’ll see Dennis at this conference, so it’s about time I pen a reply to Professor Goldberg. Actually, since my jetlag ain’t showing signs of abating, here’s three replies.
First, Professor Goldberg asks me to clarify what I mean by “attends to” when I write that “different phenomenology attends to different ways of intending”. Here’s what I didn’t mean: that the phenomenology causes or constitutes or even defines different modes of intending. (And I’m going to resist the urge to clarify what I mean by “causes”, “constitutes”, and “defines”; for now, at least.) And here’s what I did mean: that, for whatever reason, it feels different to do something on purpose, rather than with the knowledge that it will occur, rather than with a suspicion that it probably will occur. Put another way, what I meant is that different phenomenology correlates with different modes of intending.
Why do I think this matters? Well, because to the extent that the law’s aim are ultimately practical – e.g. to identify the guy who dunnit, or to imprison them (or whatever else) – as long as we can find a reliable physical feature that co-varies with different modes of intending, we might (if we devise the right technology) be able to use that physical feature as a reliable indicator of the degree of intention with which someone acted. And that would be so very useful!
Right now, when a court tries to ascertain the degree of intent with which someone acted, it has to deduce this from such facts as whether the person acted in a way that suggests that they were trying to cover their tracks. Because if they did act in such a way, then (we suppose) that’s pretty good evidence (or at least very suggestive of the fact) that they knew that what they were doing was wrong — i.e. that they acted either recklessly, with knowledge, or on purpose. (Though, admittedly, they may have thought that what they were doing was wrong for an unrelated reason; I’ll let this one go too since I don’t think anything of consequence hinges on it.)
Naturally, the fact that someone acted in that manner (that they were covering their tracks) is not what makes it true that they acted with that degree of intention. Rather, we just think that it provides reliable evidence of the degree of intention with which they acted. And my own suggestion is no different. If different phenomenology attends to, or correlates with, different degrees of intending, then looking to the different phenomenology may give us an insight into the degree of intention with which that person acted.
Second, Professor Goldberg asks me to clarify what I mean by “implementing” when I write that “regardless of whether we conceive of knowledge as akin to text inscribed in some location on a sheet of paper [or] as an ability, … we will still presumably want to say that the [inscription or the] ability in question is implemented somewhere in the brain.”
My thought was something like this (though note that what I say below might clarify some potential confusion): when I learn new facts (e.g. that you can get great coffee at Zappi’s Bike Café in Oxford) or acquire new skills (e.g. how to ride a bicycle) something in me changes. If it didn’t, I wouldn’t have learned those facts or acquired those skills. Maybe new inscriptions are made somewhere in the brain, or maybe new mechanisms develop in the brain – or whatever – and in virtue of those inscriptions or mechanisms I now know new things or am able to do new things. I just can’t see how I can learn something new without me changing in some way, and so wherever we draw the boundary around me, somewhere in there the right kind of change will have to occur.
What I take this to entail is simply that by looking for the inscription or the mechanism (in the right place), we can figure out if the person knows the thing in question. Naturally multiple realizability complicates matters – content-wise identical inscriptions and ability-identical mechanisms are probably implementable in many ways – but this just makes the exercise of figuring out what someone knows practically much more difficult. But it does not present a conceptual problem, and yet I take Pardo and Patterson (and Professor Goldberg?) to think that there is a conceptual probem here.
Third, I must however acknowledge that my above clarifications are misleading in one way. The last thing I wanted to imply is that all mental phenomena are ultimately implemented in the brain and not anywhere else. For precisely the sorts of reasons that Walter Glannon cites (which Professor Goldberg also seems to endorse), I too think that the mind extends beyond the brain, at least into the body, and I’m not averse to the suggestion that it might even scaffold itself onto parts of the external world. Put another way, I reckon the mind is at least embodied and probably also extended.
Why mention this? Well, because when I talk of knowledge and skills being implemented somewhere, I don’t actually think they must necessarily be implemented (just) in the brain. Some of these things might be implemented (at least partly) in the body, and even (partly) in the external world. So if it should turn out that some things aren’t inscribed or implemented in the brain, then that wouldn’t really bother me. Rather, I’d just start looking to the other places in the physical world in which my mind exists.
However, importantly, I wouldn’t abandon the thought that there is a somewhere where knowledge, skills, and traces of degrees of intending might be found. And to the extent that these things will be found somewhere, I still can’t see a reason to resist the suggestion that science (maybe not just neuroscience) could help us to figure out the degree with which someone intended to do something, or what they know, or what they can and cannot do.
To be frank, I’m actually not sure that any of us are disagreeing, or if we are, then precisely what we might be disagreeing about. I suspect that we are talking past one another, and I hope that this post might encourage Pardo, Patterson, and Professor Goldberg to help me understand what I’m misunderstanding. =)