Archive for March 12th, 2010




I would like to thank all the three commentators for their insightful remarks. Let me reply to you in detail.

Replies to Wojtek:

Ad. (1) I believe that Petrażycki’s term ‘essence’ should be interpreted in the Aristotelian sense of the word. There are two arguments that back this interpretation. First, if someone utilizes the classical conception of definition (per genus et differentiam) and treats definitions as real definitions (as opposed to nominal definition) then he is forced to accept that there exist essences in the world. And Petrażycki explicitly states that his aim is to formulate a real definition of law. Second, Petrażycki seeks a science that would be fundamental to law (he claims it is psychology). This is also Aristotelian, although such ideas can be found in other philosophical doctrines, even in the conceptions of the Vienna Circle.

However, I do not claim that Petrażycki embraces Aritotelian metaphysics in toto. He rather (perhaps unconsciously) subscribes to several methodological directives of Aristotle which presuppose certain very general metaphysical theses. The point is that those theses despite being general make the project of providing a naturalistic definition of law untenable.

As to the contemporary incarnation of essentialism, i.e. the notion of natural kinds, I disagree that it has anything to do with science (as Wojtek assumes when telling us that the idea is present “in the philosophical reflection on science”). It i rather an idea that originated in the discussions surrounding such problems as theory of meaning, counterparts, identity, possible worlds etc. It is thus an attempt to explain the working of natural language and some issues in what may be called folk psychology. I belive that contemporary psychology may have something interesting to say about natural kinds. But as for metaphysics, one that is inspired by science, it is unimportant.

Ad. (2) The notion of worldviews is undoubtedly a very general and vague one. I define it as a set of very general theses that form a particular picture of the world. Thus, if I speak of the Aristotelian worldview, I have in mind some fundamental principles Aristotle embraced (like the ideas of logos, the intelligibility of the world, the ideas of substances and accidents, the conception of essences, or teleology), and not the details of the Stagiryte’s doctrines.  If those theses may be rejected (like the idea of substances) then the definitions of law formed within such worldviews are likewise to be rejected. Now, as we speak of rejection of certain philosophical conceptions and not their approval, the more general the rejected theses are the better (the stronger our argument is).

Ad (3) If my reading is sound, Petrażycki defines ‘legal phenomenon’ as a complex mental state, one  that includes the required representations and emotions they cause. It is therefore a mistake to speak of Petrażyki’s definition as identifying law as a kind of emotions.

Ad (4) First, I believe Wojtek does not distinguish between Hart’s definition of law and his definition of a social rule of behaviour. The definition (or better, the description) which utilizes the notions of the external and internal point of views is Hart’s account of social rules (I believe all social rules, including language rules, morality, rationality etc.; Hart draws here on the work of Wittgenstein). Law, in turn, is defined as a set of social rules among which one can distinguish between primary and secondary rules. This interpretational controversy (between Wojtek and me) is crucial. I claim that rules (any rules) have both aspects, internal and external. Wojtek, as I understand, limits this external/internal criterion to legal rules (both of primitive law and contemporary law). By doing so, he decides not to speak of the ontology of other kinds of rules and loses what I deem the ontological horizon.

Second, Wojtek’s reduction of law’s normativity to morality is lacking for various reasons: (a) he reduces some phenomenon A to a phenomenon B, but he falls short of explaining B. Thus, the reduction is unsuccessful; (b) he claims that treating law’s normaivity as sui generis would lead to the naturalistic fallacy. Why? If one does not reduce legal norms to mental states or social interactions, but instead speaks of them as emergent or supervenient entities (with which I agree), one is safeguarded from the fallacy objection. If in the process of emergence some new features, non-reducible to the features of the subvenient entities, appear, why shouldn’t one count normativity (normative force) among them? Moreover, if treating law as a social fact makes one to reject the idea of sui generis normativity of law, then what is morality if it has some normative force. It follows that morality is not a social fact! Why?

(c) Wojtek says one cannot reduce the normativity of law to the normativity of the rules of rationality, claiming that the only option would be to use Kantian practical rationality which is, effectively, a kind of morality. I do not understand this. Why instrumental rationality wouldn’t do? Or some kind of critical rationalism along the lines of Popper’s conceptions? Moreover, if we deem legal rules normative if they constitute objective reasons for action, one should ask how to understand the term ‘reason’? If one wishes to avoid postulating the existence of some sui generis entities (reasons), one should adopt a view which says that reasons are exactly those rules of behaviour which a theory of rationality dictates us to treat as reasons.

Ad (7)  I do not see how the directives 2 and 3 limit the enterprise of naturalizing law. I believe they only say how to naturalize law in a methodologically responsible way. Other naturalization projects (ones that do not fulfill these directives) would simply commit a serious fallacy.

Replies to Aeddan

Ad (1). Petrażycki is wrong, mainly because he utilizes a bad methodology and uses an anachronistic psychology. A different question is, whether one should take emotions into account while defining law. My standpoint is that there may be many different definitions of law. Some of them can take emotions into account, others may disregard emotions. The question is what are the criteria of comparing such definitions. This is a topic for a longer discussion, but I believe that among the criteria there should be the methodological ones. There would also be the criterion of cognitive needs: different definitions may fulfill different cognitive needs. Of course, the presupposition here is that there exists no essence of law.

Ad. (2) An archeological survey is not necessary, but may be helpful for an interesting case study. Basically, what we need is to uncover mechanisms of the emergence of social (including legal) rules. Interesting insights for this are provided by evolutionary theory and neuroscience. However, to paraphrase the famous Kantian dictate, the biological data without philosophy is blind, while philosophy without biological data is empty.

Replies to Łukasz

Ad. (1) Ontological baggage are any philosophical theses which are presupposed either by the method one uses (as in the case of Petrażycki) or by the experimental setting/interpretational scheme one utilizes. I speak of the unrecognized ontological baggage – this is dangerous, as one does not realize that his conclusions are in part determined by the assumptions one unconsciously assumes. This is illustrated by the case of Petrażyki.

Ad. (2) The postulate of nonfoundationism may be trivial, but if so most of the philosophers occupied with defining law missed its triviality (cf. Petrażycki).

Ad. (3) Philosophy is not ‘ontologically’ different than other sciences. However, philosophy is the only science that is capable of adopting a ‘meta-perspective’ (even in its own case). Once this meta-perspective is assumed, one has to do with philosophy (this is an arbitrary definition, but I would defend it). Thus, any reflection that adopts this meta-perspective at least partially, should be considered philosophy. Now, if one wishes to naturalize law one needs to adapt this meta-perspective. Otherwise, if the definition (theory) of law was to follow “logically” from the premises provided by some other science (AI, psychology, neuroscience), one would miss the “ontological baggage” that comes with those premises. This was missed by Petrażycki.

Ad. (4) The problem of the ontological horizon may seem trivial, but I believe that Wojtek’s case shows that if the horizon is not set properly, some solutions appear ‘ex machina’ or seem ad hoc.

I believe moreover that all the four directives ‘result’ from my case studies (as I tried to indicate above).

Ad. (5) To say that legal norms are schemas (frames) or parts thereof would not stand philosophical criticism. This would be a totally unintuitive – or, perhaps better, a fully stipulative – definition of rules. This would not be unprecedented, but of no use anyway.



Short review: P. Glimcher (2003). The neurobiology of visual saccadic decision making, Annual Review of Neurosceince, t. 25, p. 133-179


P. Glimcher (2003). The neurobiology of visual saccadic decision making, Annual Review of Neurosceince, t. 25, p. 133-179, przekład polski: A. Wojciechowski w „Formy aktywności umysłu ujęcie kognitywistyczne” , t. 2 Ewolucja I złożone struktury p0znawcze, red. naukowa Andrzej Klawiter.


As the authors says “over the past two decades significant progress has been made toward understanding the neural basis of primate decision making, the biological process that combines sensory data with stored information to select and execute behavioral responses.” In the article the author shows the scale of the progress that has been made in studies of visual-saccadic decision making, a system that is becoming a model for understanding decision making in general.

Moreover examples are given how theoretical models of efficient decision making developed in the social sciences are beginning to be used to describe the computations the brain must perform when it connects sensation and action. Using these economic models, neurophysiologists have been able to describe neuronal activity recorded from the brains of awake-behaving primates during actual decision making. These recent studies have examined the neural basis of decisions, ranging from those made in predictable sensorimotor tasks to those unpredictable decisions made when animals are engaged in strategic conflict. All of these experiments seem to describe a surprisingly well-integrated set of physiological mechanisms that can account for a broad range of behavioral phenomena. The subject article presents many of these recent studies within the emerging neuroeconomic framework for understanding primate decision making.

The progress in understanding spinal reflexes represented a first step in the psychological study of decision making. Reflex studies provided a model for understanding the simplest possible generative mechanism for behavior, a mechanism with which sensory stimuli could be used to trigger motor responses. The mechanism that underlie other classes of behavior, however remained largely unexplored, by psychology until recently.

There are three classes of behavioral decision making are specified:

Deterministic sensorimotor behaviors. Here the huge progress has been made.

Deterministic (or predictable) behaviors which are controlled by a mixture of sensory and nonsensory signals. These are bahaviors in which decision making is influenced bvby factors like the estimated value of a motor response ot by probabilistic estimates of the current state of the external world.

Stochastic (unpredictable) decision making. These also also begun to be studies psychologically.


 The article presents quite detailed research on neurobiology and psychology of the simplest decision. However the more general idea is expressed in I personally share. When studying more and more complex decision making all of them are computable (deterministic sensu largo or probabilistically deterministic). As the authors says” these studies of stochastic behaviors are beginning to suggest that even this class of decision making may soon be understandable, at the mechanistic level, in terms of indentifiable cellular level computations performed within a defined neural architecture”.


Short review: M. Mahlmann , J. Mkhail, Cognitive Science, Ethics, Law



M. Mahlmann , J. Mkhail, Cognitive Science, Ethics, Law,



The above short paper is a good start on cognitive science perspective on ethics and law. The author shows how views on human mind developed within history, underlining moments where stronger stimulus had been given by scientific accelerations. One of this moments was a cognitive revolution of 1950s-1960s of XX century.

In the light of developments the author asks the following questions: what about morality? Wasn’t Hume correct to locate it in the capital he meant to conquer? Does not the existence of the language faculty and the modular view of the mind it helped spawn lend plausibility to the view that human beings likewise possess a distinct moral faculty? Can postulating such a faculty help explain the facts of moral development and the phenomenology of moral judgment?

Besides relevance of cognitive science for philosophy of mind, morality (ethics) the author also tries to answer shortly on question of relevance of cognitive science for law. On practical level it may have a serious implications for our understanding of fields such as a crime, tort, contract, evidence, agency, mens rea, insanity, culpability in general.



The paper is not very full of new ideas or theses. However I find valuable as it shows a new perspective for moral, ethics or legal researches. This new cognitive science perspective started in 1950s-1960s of XX century, however more and more often it „attacks” the most conservative corners of philosophy connected with normativism.


Short review: Michael Gazzaniga, The Ethical Brain, Harper Perennial 2005

Michael  Gazzaniga, The Ethical Brain, Harper Perennial 2005


1) We are able to speak about ethics form neuroscientific perspective (neuroscience of ethics), and we are also able to speak about ethical implications of neurosciences (ethics of neuroscience).


The book is divided into four parts. First part, concerns so called “Life-Span Neuroethics”. Gazzaniga discusses there problems with conferring a moral status in cases where we have to decide whether an embryo has a moral status or whether has not (possibility of an abortion). On the other hand, he also asks the question, in what point in time an aging brain allows us to not ascribe a moral status to someone (possibility of an euthanasia). This issues are constantly debated by ethicists and lawyers, notwithstanding,  the perspective form Gazzaniga starts this discussion is quite new. He uses his knowledge in neurosciences to ask old questions, but simultaneously he tries to provide new answers. In the second part of his book he discuses ethical dimensions of brain enhancement. Third part is devoted to the possible implications of neuroscientific development for legal sciences. We are able to find remarks concerning  legal responsibility, genesis of antisocial behavior and many more which are in the field of interested scientifically oriented lawyers. The last part of The Ethical Brain concerns the nature of moral beliefs and the concept of universal ethics. This is the part which is purely focused on neurobiology of morals (neuroscience of ethics). One of the most interested thesis introduced in this chapter is this when Gazzaniga claims that moral claims are contextual, social and based on neural mechanism, and if so, we can start to looking for some kind of universal ethics.


The Ethical Brain is a well-written introduction into an emerging field of neuroethics. After reading this book, a reader will gain a general picture of what neuroethics deals with. However, when it comes to philosophy and philosophical interpretations of neuroscientific discoveries he is not as precise in his proceedings as he should be. This is unfortunately a feature which can be found in many works of natural scientists who write about issues from intersections of philosophy and sciences.


Short review: Neurotrash, R. Tallis, The NewHumanist, Volume 124 Issue 6 November/December 2009


by Raymond Tallis

The NewHumanist, Volume 124 Issue 6 November/December 2009


1) Contemporary achievements in neurosciences are one of the most exciting  scientific discoveries in XX century. However, results obtained in neurobiology, are very often misread, and used carelessly outside its proper field of applications.

2) Using of neuroscientific tools  in legal theory, aesthetics, philosophy is inappropriate, because this kind of practices can in near future discredit the real achievements of neurobiology.

General Remarks:

Tallis attacks in his article the whole new interdisciplinary program in the contemporary Science when he claims, that neurobiology, its tools, its achievements are strictly  limited to medicine and its problems. This lack of faith in positive influence of neuroscience on other disciplines like law, aesthetics, economy is supported by referring to Benjamin Libet’s expriment and its criticisms, or to neuro-aesthetics view of art history.  Tallis also presents skeptical approach when it comes to attempts of using neuroscience in order to inform policemakers how to enact good legal rules. His criticism has two roots: the first one is a believe that we are not our brains. In fact, we are so much more, and therefore, the society is not simple a set of stand-alone brains, but it is a collection of people. The conclusion which comes from this believe is not only we should wait in applying “neurotechnics” to, for example, legal problems, but in fact, we will not be able ever to use neuroscience outside of medicine. The second root of thesis stated above is methodological one: tools which are use in neuroscience are technologically poor, especially when it comes to provide answers for questions like “do we have a free will? or “why do I like this picture?”. Therefore, neuroscience is not a place when humanists should seek answers for their problems.


Tallis has a point when he speaks about technological level of neuroscientific tools, however he is wrong in his conclusions. We can use – for example – EEG to check if somebody is lying. In fact, we already did it in courtroom in United States. Thanks to EEG a man who was convicted on a charge of murder was released. And when it comes to Tallis’ believe that we are not our brains, well, it is only believe, an example of wishful thinking.