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4 - Law, Folk Psychology and Cognitive Science

from I - Metatheory and Methodology

Published online by Cambridge University Press:  21 April 2021

By
Łukasz Kurek
Edited by
Bartosz Brożek ,
Jaap Hage  and
Nicole Vincent
Bartosz Brożek
Affiliation:
Jagiellonian University, Krakow
Jaap Hage
Affiliation:
Universiteit Maastricht, Netherlands
Nicole Vincent
Affiliation:
Macquarie University, Sydney
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Summary

Folk psychology (henceforth FP) is the common-sense understanding of the mind. The idea behind this chapter is that the legal understanding of the human mind – that is, how the human mind is conceptualized within, for example, criminal law, tort law, contract law or jurisprudence – has its roots in FP. One of the goals of the chapter is to determine in more detail how the mind, and its relationship with behaviour, are conceptualized within law.

Numerous contemporary philosophers and cognitive scientists are interested in FP. Various claims – both of an empirical and philosophical nature – have been made as to what the features of FP are. Considerable disagreement remains in connection to even its most basic features. Much of this chapter pertains to issues which have emerged at the intersection between FP and cognitive science as they are directly relevant to the discussion about the folk-psychological underpinnings of law. An example of such a feature, and one which will often resurface in this chapter, is whether FP makes any commitments as to how the mind really works. If FP makes such claims and they turn out to be false, this could be used as an argument against the usefulness of FP. In a way, it would be surprising if the empirical commitments of FP – if there are any – did not, at least to some extent, turn out to be false. Science has already revealed how our common sense gets things wrong in the context of our everyday understanding of the physical world. Some think, however, that FP should not be viewed as making empirical commitments.

The chapter tackles issues pertaining to folk psychology which are specific to law as well. The considerations carried out in the chapter indicate how the practical nature of law influences the debate about folk psychology, law and cognitive science. Those dubious as to the usefulness of FP for legal purposes should propose how FP could be replaced, for if our legal practices are rooted in FP, these legal practices would be crippled without it and completely replacing it would not be an easy task. Some would even argue that the elimination of FP would be the greatest intellectual tragedy in the history of our species. As we can see, the topic raises some emotions.Finally, the discussion carried out in the chapter covers the three dominant outlooks on the relationship between folk-psychological underpinnings of law and cognitive science: autonomy, revision and integration.

Type
Chapter
Information
Law and Mind
A Survey of Law and the Cognitive Sciences
 , pp. 55 - 85
Publisher: Cambridge University Press
Print publication year: 2021

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References

Alces, P. (2018). The Moral Conflict of Law and Neuroscience. Chicago and London: The University of Chicago Press.Google Scholar
Alexy, R. (1989). A Theory of Legal Argumentation. Oxford: Clarendon.Google Scholar
Apperly, I., & Butterfill, S. (2009). Do Humans Have Two Systems to Track Beliefs and Belief-Like States? Psychological Review 116(4), 953–70.Google Scholar
Aristotle. (2000). Nicomachean Ethics. Cambridge: Cambridge University Press.Google Scholar
Bayne, T., & Pacherie, E. (2015). Consciousness and Agency. In Clausen, J. & Levy, N. (eds.), Handbook of Neuroethics. Dordrecht: Springer, pp. 211–30.Google Scholar
Bertea, S. (2015). A Foundation for the Conception of Law as Practical Reason. Law and Philosophy 34, 55–88.Google Scholar
Churchland, P. (1981). Eliminative Materialism and the Propositional Attitudes. Journal of Philosophy 78, 67–90.Google Scholar
Craver, C. (2007).Explaining the Brain: Mechanisms and the Mosaic Unity of Neuroscience. Oxford: Oxford University Press.Google Scholar
Dahan-Katz, L. (2013). The Implications of Heuristics and Biases Research on Moral and Legal Responsibility: A Case Against the Reasonable Person Standard. In Vincent, N. (ed.), Neuroscience and Legal Responsibility. Oxford: Oxford University Press.Google Scholar
Davidson, D. (1984). Inquiries into Truth and Interpretation. Oxford: Oxford University Press.Google Scholar
Dennett, D. (1978a). Intentional systems. In Dennett, D., Brainstorms. Montgomery, VT: Bradford, pp. 3–22.Google Scholar
Dennett, D. (1978b). Beliefs about Beliefs. Behavioral and Brain Sciences 1, 568–70.Google Scholar
Dennett, D. (1991). Real Patterns. Journal of Philosophy 88, 27–51.Google Scholar
Dennett, D. (1996). Kinds of Minds: Toward an Understanding of Consciousness. New York: Basic Books.Google Scholar
Figdor, C. (2018). Pieces of Mind: The Proper Domain of Psychological Predicates. Oxford: Oxford University Press.Google Scholar
Fodor, J. (1987). Psychosemantics, Cambridge, MA: MIT Press.Google Scholar
Gendler, T. (2008). Alief and Belief. The Journal of Philosophy 105(10), 634–63.Google Scholar
Godfrey-Smith, P. (2005). Folk Psychology as a Model. Philosophers’ Imprint 5(6), 1–16.Google Scholar
Goldman, A. (2006). Simulating Minds: The Philosophy, Psychology, and Neuroscience of Mindreading. Oxford: Oxford University Press.Google Scholar
Gopnik, A., Meltzoff, A., & Kuhl, P. (1999). The Scientist in the Crib: What Early Learning Tells Us About the Mind. New York: HarperCollins.Google Scholar
Greene, J., & Cohen, J. (2004). For the Law, Neuroscience Changes Nothing and Everything. Philosophical Transactions of the Royal Society of London 359, 1775–85.Google Scholar
Greenwood, J. (2008). A Conceptual History of Psychology. New York: McGraw-Hill.Google Scholar
Humphrey, N. (1976). The Social Function of Intellect. In Bateson, P. P. G. & Hinde, R. A. (eds.), Growing Points in Ethology. Cambridge: Cambridge University Press, pp. 303–17.Google Scholar
Izhikevich, E. (2007). Dynamical Systems in Neuroscience: The Geometry of Excitability and Bursting. Cambridge, MA and London: MIT Press.Google Scholar
Kahneman, D. (2011). Thinking, Fast and Slow. New York: Farrar, Straus and Giroux.Google Scholar
Knobe, J. (2005). Theory of Mind and Moral Cognition: Exploring the Connections. Trends in Cognitive Sciences 9(8), 357–9.Google Scholar
Knobe, J. (2014). Free Will and the Scientific Vision. In Machery, E. & O’Neill, E. (eds.), Current Controversies in Experimental Philosophy. New York and London: Routledge, pp. 69–85.Google Scholar
Lewis, D. (1972). Psychophysical and Theoretical Identifications. Australasian Journal of Philosophy 3(50), 249–58.Google Scholar
Maibom, H. (2003). The Mindreader and the Scientist. Mind & Language 18(3), 296–315.Google Scholar
Malle, B. (2004). How the Mind Explains Behavior: Folk Explanations, Meaning and Social Interaction. Cambridge, MA: MIT Press.Google Scholar
Malle, B., & Nelson, S. (2003). Judging Mens Rea: The Tension between Folk Concepts and Legal Concepts of Intentionality. Behavioral Sciences and the Law 21(5), 563–80.Google Scholar
Marr, D. (2010). Vision: A Computational Investigation into the Human Representation and Processing of Visual Information. Cambridge, MA: MIT Press.Google Scholar
Marshall, J. (1968). Intention in Law and Society. New York: Funk and Wagnall.Google Scholar
Mollo, D. (2017). Content Pragmatism Defended. Topoi, https://doi.org/10.1007/s11245-017-9504-6.Google Scholar
Morse, S. (2015). Criminal Law and Common Sense: An Essay on the Perils and Promise of Neuroscience. Faculty Scholarship. Paper 1609. http://scholarship.law.upenn.edu/faculty_scholarship/1609.Google Scholar
Nichols, S., & Stich, S. (2003). Mindreading: An Integrated Account of Pretence, Self-Awareness, and Understanding Other Minds. Oxford: Clarendon Press.Google Scholar
Onishi, K. H., & Baillargeon, R. (2005). Do 15-Month-Old Infants Understand False Beliefs? Science 308(5719), 255–8.Google Scholar
Pardo, M., & Patterson, D. (2013). Minds, Brains and Law. The Conceptual Foundations of Law and Neuroscience. Oxford: Oxford University Press.Google Scholar
Premack, D., & Woodruff, G. (1978). Does the Chimpanzee Have a Theory of Mind? Behavioral and Brain Sciences 1, 515–26.CrossRefGoogle Scholar
Putnam, H. (1975). Mind, Language and Reality. Cambridge: Cambridge University Press.CrossRefGoogle Scholar
Quine, W. V. O., & Ullian, J. S. (1978). The Web of Belief. New York: McGraw-Hill Education.Google Scholar
Sellars, W. (1956). Empiricism and the Philosophy of Mind. Minnesota Studies in the Philosophy of Science 1, 253–329.Google Scholar
Shapiro, S. (2002). Laws, Plans, and Practical Reason. Legal Theory 8(1), 387–441.Google Scholar
Simon, H. (1996). The Sciences of the Artificial. Cambridge, MA: MIT Press.Google Scholar
Strawson, P. (1962). Freedom and Resentment. Proceedings of the British Academy 48, 1–25.Google Scholar
Tomasello, M. (2003). Cultural Origins of Human Cognition. Cambridge, MA: Harvard University Press.Google Scholar
Velleman, J. (1992). What Happens When Someone Acts? Mind 101(403), 461–81.CrossRefGoogle Scholar
Wallace, R. J. (1999). Three Conceptions of Rational Agency. Ethical Theory and Moral Practice 2(3), 217–42.CrossRefGoogle Scholar
Wegner, D. (2002). The Illusion of Conscious Will. Cambridge, MA: Bradford Books.Google Scholar
Wilkes, K. (1984). Pragmatics in Science and Theory in Common Sense. Inquiry 27(4), 339–61.CrossRefGoogle Scholar
Wilson, T. (2002). Strangers to Ourselves: Discovering the Adaptive Unconsciousness. Cambridge, MA and London: The Belknap Press.Google Scholar
Wimmer, H., & Perner, J. (1983). Beliefs about Beliefs: Representation and Constraining Function of Wrong Beliefs in Young Children’s Understanding of Deception. Cognition 13, 103–28.Google Scholar

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