When Does the Law Not Apply?
Jon Hanson is the Alfred Smart Professor of Law at Harvard Law School. He is the Director and co-creator of The Project on Law and Mind Sciences at Harvard Law School and co-creator of, and contributor to, The Situationist blog, which is a forum for identifying, examining, discussing, and debating, the effect of situational forces — that is, non-salient factors around and within us — on law, policy, politics, and legal theory, and on our social, political, and economic institutions.
Question: What are some of the changes that the legal system should be making?\r\n
Jon Hanson: Well it’s a difficult challenge to figure out now what to do with this information from the Mind Sciences. My prediction is that legal theory is going to be, legal theorists in the law are going to be focused on this and struggling with this and entangled in these difficult questions going forward for who knows how long. One of the things to be aware of is that in every area of law there exists a place where the law and legal decision makers recognize the power of situation and when they do the law changes. The outcome of the law changes.\r\n
So I teach Tort Law for example, and we are in Tort Law very prone to say that people assume the risk, that they made choices, and therefore they should bear the consequences. And we are also inclined not to allow there to be liability where we think the parties could have contract so we say look if you use someone else’s stuff and you could have gained consent and you didn’t you’re going to have to pay. We may have to put you in jail. We call this sort of Property Rule Protection. Well there are times when we say that doesn’t apply, that the situation actually played a role that doesn’t typically play a role and so now we’re going to adjust the law. An example, a famous example in Tort Law is the case of a family out on a boat on a lake and a sudden storm comes up and now this family is stuck in the middle of the lake and they need to get somewhere for safety, they see a dock and they approach the dock, they try to get on it and they are pushed off right. And now as a consequence of the person on the dock pushing them off, something that the person is generally entitled to do because it’s their property, so Property Rule Protection, the boat slams against the shore, it’s damaged, and some of the people are injured. So, that’s at least a variation of an actual case.\r\n
Tort Law recognizes that in those situations where a storm comes up and people are looking to protect their lives that it’s not exactly their disposition that’s leading them, it’s more their situation. Tort Law says then that your permitted to use someone else’s dock and that if they do try to push you off heir going to have to compensate you for the consequences. So there’s an example of where the law is adjusted to take situation into account. I could take you through every area of law, I won’t. In part because I don’t know them all but if I did I would take you through all of them and show you that in every area of law there’s a place where situation comes in. And so the law has already struggled with this it’s just picked a particular sort of dividing line. So in Contract Law we say if someone puts a gun to your head and says you’re money or you’re life and you give your wallet, that’s not an enforceable contract, it wasn’t your disposition that allowed you to do it, it was your situation and so we change the law to reflect it. I think one general way in which the law is going to have to deal with this is its going to have to slide, slide the sort of the dividing point between when situation matters and when disposition matters. And that’s going to be difficult because there is some simplicity and there’s something affirming about the idea that if something bad happens to someone it’s because they chose it. So there will be resistance to this but I think that the Mind Sciences are going to appeal to those who are committed to kind of a truth to expand those circumstances in which we take situations seriously. Now, if you do that and you begin thinking about problems like crime, this doesn’t mean that you are suddenly saying well, because criminal behavior was situationally caused we should set all the criminals free. It’s actually much more complicated than that. But its implications can be quite concrete.\r\n
So one thing it might do is it might suggest to you that if criminals behaved a certain way it’s not a solution to changing that behavior simply to say that those people should be put behind bars. Because if they are indeed moved by situation and we might look at a number of situational factors, but some of the classics that already come to mind are things like poverty and hunger that might lead people to behave in a criminal ways that we’re not going to change that behavior if we attribute what they did simply to their dispositions and miss the fact that they were operating in an environment which would lead many people, including perhaps ourselves, to behave the same way. So, its focus on behavior kind of an instrumentalists view of law, asking how can we change what people do that might lead us to change how we respond to criminal behavior? To be sure, we may put people behind bars but behind bars we may be less likely to say they are of a certain character and therefore we just make them do their time and there’s nothing we can do. Maybe we can change their situation behind bars and maybe we can change the situation of people who are not behind bars to lead others to engage in less of that kind of conduct.\r\n
A commitment to trying to do something about the actual problem I think entails a commitment to shedding the simple dispositionist model. And one more concrete thing I would add and that is that our institutions themselves are sort of sources of situational influence. And we have for the most part been blind to those situational influences and have assumed that the way people have operated is a function of their disposition and not their institutions. In part for that reason I think we don’t pay close attention to the way in which there exists a competition over our institutions, a competition that changes our institutions and in turn, changes us. And this might be everything from our government, congress, our judiciary, whether judges, state judges for example are elected it may have real implications for the outcomes of the decisions and what the nature of those elections are. Whether money from large corporations or other groups can influence those institutions is something again, we’ve been not inclined to ask very carefully in part because of our faulty view of the human animal. So I would say there are many concrete ways in which a sort of a more situationist perspective might change the law. The details of it though I think require first accepting kind of the nature of the problem and second, a more general attempt on the part of many of our best and brightest legal scholars and young law students and indeed our judges to help sort out exactly what this means.
Recorded on February 17, 2010
Interviewed by Austin \r\nAllen
As Jon Hanson’s pioneering project on "situationalism" reveals, humans think and operate in ways that don’t fit within our legal framework all the time, as the context in which an act is committed may be more powerful than our minds can know.
If you're lacking confidence and feel like you could benefit from an ego boost, try writing your life story.
In truth, so much of what happens to us in life is random – we are pawns at the mercy of Lady Luck. To take ownership of our experiences and exert a feeling of control over our future, we tell stories about ourselves that weave meaning and continuity into our personal identity.
Researchers hope the technology will further our understanding of the brain, but lawmakers may not be ready for the ethical challenges.
- Researchers at the Yale School of Medicine successfully restored some functions to pig brains that had been dead for hours.
- They hope the technology will advance our understanding of the brain, potentially developing new treatments for debilitating diseases and disorders.
- The research raises many ethical questions and puts to the test our current understanding of death.
The image of an undead brain coming back to live again is the stuff of science fiction. Not just any science fiction, specifically B-grade sci fi. What instantly springs to mind is the black-and-white horrors of films like Fiend Without a Face. Bad acting. Plastic monstrosities. Visible strings. And a spinal cord that, for some reason, is also a tentacle?
But like any good science fiction, it's only a matter of time before some manner of it seeps into our reality. This week's Nature published the findings of researchers who managed to restore function to pigs' brains that were clinically dead. At least, what we once thought of as dead.
What's dead may never die, it seems
The researchers did not hail from House Greyjoy — "What is dead may never die" — but came largely from the Yale School of Medicine. They connected 32 pig brains to a system called BrainEx. BrainEx is an artificial perfusion system — that is, a system that takes over the functions normally regulated by the organ. The pigs had been killed four hours earlier at a U.S. Department of Agriculture slaughterhouse; their brains completely removed from the skulls.
BrainEx pumped an experiment solution into the brain that essentially mimic blood flow. It brought oxygen and nutrients to the tissues, giving brain cells the resources to begin many normal functions. The cells began consuming and metabolizing sugars. The brains' immune systems kicked in. Neuron samples could carry an electrical signal. Some brain cells even responded to drugs.
The researchers have managed to keep some brains alive for up to 36 hours, and currently do not know if BrainEx can have sustained the brains longer. "It is conceivable we are just preventing the inevitable, and the brain won't be able to recover," said Nenad Sestan, Yale neuroscientist and the lead researcher.
As a control, other brains received either a fake solution or no solution at all. None revived brain activity and deteriorated as normal.
The researchers hope the technology can enhance our ability to study the brain and its cellular functions. One of the main avenues of such studies would be brain disorders and diseases. This could point the way to developing new of treatments for the likes of brain injuries, Alzheimer's, Huntington's, and neurodegenerative conditions.
"This is an extraordinary and very promising breakthrough for neuroscience. It immediately offers a much better model for studying the human brain, which is extraordinarily important, given the vast amount of human suffering from diseases of the mind [and] brain," Nita Farahany, the bioethicists at the Duke University School of Law who wrote the study's commentary, told National Geographic.
An ethical gray matter
Before anyone gets an Island of Dr. Moreau vibe, it's worth noting that the brains did not approach neural activity anywhere near consciousness.
The BrainEx solution contained chemicals that prevented neurons from firing. To be extra cautious, the researchers also monitored the brains for any such activity and were prepared to administer an anesthetic should they have seen signs of consciousness.
Even so, the research signals a massive debate to come regarding medical ethics and our definition of death.
Most countries define death, clinically speaking, as the irreversible loss of brain or circulatory function. This definition was already at odds with some folk- and value-centric understandings, but where do we go if it becomes possible to reverse clinical death with artificial perfusion?
"This is wild," Jonathan Moreno, a bioethicist at the University of Pennsylvania, told the New York Times. "If ever there was an issue that merited big public deliberation on the ethics of science and medicine, this is one."
One possible consequence involves organ donations. Some European countries require emergency responders to use a process that preserves organs when they cannot resuscitate a person. They continue to pump blood throughout the body, but use a "thoracic aortic occlusion balloon" to prevent that blood from reaching the brain.
The system is already controversial because it raises concerns about what caused the patient's death. But what happens when brain death becomes readily reversible? Stuart Younger, a bioethicist at Case Western Reserve University, told Nature that if BrainEx were to become widely available, it could shrink the pool of eligible donors.
"There's a potential conflict here between the interests of potential donors — who might not even be donors — and people who are waiting for organs," he said.
It will be a while before such experiments go anywhere near human subjects. A more immediate ethical question relates to how such experiments harm animal subjects.
Ethical review boards evaluate research protocols and can reject any that causes undue pain, suffering, or distress. Since dead animals feel no pain, suffer no trauma, they are typically approved as subjects. But how do such boards make a judgement regarding the suffering of a "cellularly active" brain? The distress of a partially alive brain?
The dilemma is unprecedented.
Setting new boundaries
Another science fiction story that comes to mind when discussing this story is, of course, Frankenstein. As Farahany told National Geographic: "It is definitely has [sic] a good science-fiction element to it, and it is restoring cellular function where we previously thought impossible. But to have Frankenstein, you need some degree of consciousness, some 'there' there. [The researchers] did not recover any form of consciousness in this study, and it is still unclear if we ever could. But we are one step closer to that possibility."
She's right. The researchers undertook their research for the betterment of humanity, and we may one day reap some unimaginable medical benefits from it. The ethical questions, however, remain as unsettling as the stories they remind us of.
A space memorial company plans to launch the ashes of "Pikachu," a well-loved Tabby, into space.
- Steve Munt, Pikachu's owner, created a GoFundMe page to raise money for the mission.
- If all goes according to plan, Pikachu will be the second cat to enter space, the first being a French feline named Felicette.
- It might seem frivolous, but the cat-lovers commenting on Munt's GoFundMe page would likely disagree.
SMARTER FASTER trademarks owned by The Big Think, Inc. All rights reserved.