John Mikhail (Georgetown University Law Center) has posted Emotion, Neuroscience, and Law: A Comment on Darwin and Greene (Emotion Review, Forthcoming) on SSRN. Here is the abstract:
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Darwin’s (1871) observation that evolution has produced in us certain emotions responding to right and wrong conduct that lack any obvious basis in individual utility is a useful springboard from which to clarify the role of emotion in moral judgment. The problem is whether a certain class of moral judgments is “constituted” or “driven by” emotion (Greene 2008, p. 108) or merely correlated with emotion while being generated by unconscious computations (e.g., Huebner et al. 2008). With one exception, all of the “personal” vignettes devised by Greene and colleagues (2001, 2004) and subsequently used by other researchers (e.g., Koenigs et al. 2007) in their fMRI and behavioral studies of emotional engagement in moral judgment involve violent crimes or torts. These studies thus do much more than highlight the role of emotion in moral judgment; they also support the classical rationalist thesis that moral rules are engraved in the mind.
And from the paper:
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[I]t is useful to look closely at the 25 ―personal‖ dilemmas devised by Greene and colleagues in their original fMRI study (2001) and subsequently used by a number of other researchers (e.g., Greene et al. 2004; Koenigs et al. 2007; Moore et al. 2008). Greene found that these vignettes elicited increased activity in the medial prefrontal cortex (MPFC), posterior cingulated cortex (PCC), superior temporal sulcus (STS), and amygdala. Because these regions are associated with emotional processing, he concluded that these ―characteristically deontological‖ judgments are driven by emotion. What seems to have escaped his notice and that of the scientific community generally, however, is that all of the actions described by these vignettes are well-known crimes or torts (Table 1). Specifically, 22 of the 25 scenarios satisfy a prima facie case for purposeful battery and/or intentional homicide (i.e., murder). Two other cases involve acts of rape and sexual battery, while the final case describes a negligent (i.e. unreasonable) failure to rescue.
This very short paper is really a must read. Highly recommended.