Mikhail on “Emotion, Neuroscience, and Law: A Comment on Darwin and Greene”

Da Mayor: Doctor…
Mookie: C’mon, what. What?
Da Mayor: Always do the right thing.
Mookie: That’s it?
Da Mayor: That’s it.
Mookie: I got it, I’m gone.

Do The Right Thing (1989) (written and directed by Spike Lee)


“A moral being is one who is capable of reflecting on his past actions and their motives – of approving of some and disapproving of others”

-Charles Darwin, The Descent of Man, and Selection in Relation to Sex, (1922) [1871] John Murray, London.

John Mikhail (Georgetown University Law Center) has posted “Emotion, Neuroscience, and Law: A Comment on Darwin and Greene”, Emotion Review, Forthcoming.

In his article, Mikhail critiques the 25 “personal” dilemmas” devised by Harvard psychology professor, Joshua Greene and colleagues in their original fMRI study (2001) and subsequently used by a number of other researchers . Mikhail argues that Greene’s original experiments:

“did not really test two patterns of moral judgment—one―”deontological” and the other ―”utilitarian”—as much as different categories of potentially wrongful behavior. The basic cleavage he identified in the brain was not Kant versus Mill, but purposeful battery, rape, and murder, on the one hand, and a disorderly grab bag of theft crimes, regulatory crimes, torts against non-personal interests, and risk-risk tradeoffs, on the other….Crimes and torts have elements, and the relevant pattern of intuitions is best explained by assuming that humans possess implicit knowledge of moral and legal rules. Naturally, violent crimes and torts are more emotionally engaging than insider trading or environmental risk analysis, but it does not follow that emotion ―”constitutes” or ―”drives” the judgment that the former acts are wrong. Rather, what drive these intuitions are the unconscious computations that characterize these acts as battery, rape, or murder in the first place. By mischaracterizing their own stimuli, then, Greene and other neuroscientists (e.g., Koenigs et al. 2007) have drawn specious conclusions and misconceived the nature of the problem.”

The article is available for download on SSRN here.

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