Academic

Cox, Gersen, Henderson, and Samaha on Cognitive Subsystems and the Law

By Lawrence Solum

Adam Cox, Jacob Gersen, M. Todd Henderson, and Adam Samaha have posted The Modularity of Mind, Cognitive Subsystems, and Legal Theory on SSRN.  Here is the abstract:

Recent work in cognitive science has convincing demonstrated that the monistic conception of the mind is inconsistent with the best understanding of the relationship between mind and brain provided by contemporary neuroscience. The so-called "mind" actually consists of a number of modules or cognitive subsystems that interact to produce behavior and epiphenomenal cognitive experiences (or "qualia"). For this reason, models of human behavior and rational choice that rely on a monistic theory of the human mind are fundamentally wrong. So-called "minds" are causally inert and explanatorily impotent. Moreover, because an entity cannot be morally significant if it does not exist, normative theories that rely on a monist conception of an autonomous "mind" cannot withstand critical scrutiny. We propose to replace current reliance on the mythical monistically minded person with a new framework for normative and positive legal theory that we call the "mini minds approach."

Part I of this Article outlines the foundations of the mini minds approach in recent developments in cognitive science and neuroscience. We relate these developments to recent work in the philosophy of mind by Fodor explicate the contours of an approach to action theory and normative theory that is grounded in the modularity of mind.

Part II explores the implications of the mini minds framework for positive law and economics. We demonstrate that the fundamental axioms of neoclassical economics can be reformulated so as to eliminate the "homo economicus" as the fundamental unit of rational choice. The mini minds approach replaces the monistic rational actor with cluster of interrlated cognitive subsystems, each of which maximizes distinct cognitive states associated with evolutionary function of the subsystem. Although the resulting theory is more complex than the neoclassical approach, it preserves the predictive power of neoclassical models. We then explore the relationship between the mini minds approach and so-called "behavioral" law and economics. We demonstrate that the important insights of the behavioral approach are explained by the modularity of cognitive subsystems and that the weaknesses of current behavioral law and economics are eliminated once a mini minds approach is adopted.

Part III compares the mini minds framework to its principal rival, the so-called "many minds" framework that figures prominently in the recent work of Adrian Vermeule and Cass Sunstein. We demonstrate the logical dependence of the many minds framework on the empirically discredited monistic conception of the mind, and then show that the valid insights of the many minds framework can be derived from the interactions between mini minds that communicate both within and among embodied brains.

Part IV applies this framework to the central problems of positive and normative private law theory. We demonstrate that the mini minds framework provides the best explanation for the current shape of property, tort, and contract law, and that it provides the most perspicuous framework for evaluating the desirability of legal change in these domains.

Part V extends the mini minds framework to the domain of public law. It is frequently observed that public law doctrines cannot be explained or justified by a strict application of the rational choice framework. We demonstrate that this incoherence is an inherent feature of the fundamental concepts used in public law theory (democracy, rights, dignity, and so forth). We then show that a mini minds approach allows for the reformulation of public law doctrines in ways that avoid these incoherencies.  We suggest that the preferred approach to public law requires close attention to the details of institutional design that facilitate harmonious interactions between cognitive systems. Our approach can be summarized by the slogan: "The highest functional state for greatest number of cognitive subsystems.

Part VI briefly explores some of the implications of the mini minds approach for particular problems. We demonstrate that careful attention to the dynamic interactions of cognitive subsystems would have avoided the current financial crisis. We also show how a mini minds framework can guide the design of a reporting and disclosure system that would eliminate the mechanisms by which Ponzi schemes directly engage cognitive subsystems leading to actions that appear irrational on monistic views of the person.

Provocative, but highly recommended!

Full post as published by Legal Theory Blog on April 01, 2009 (boomark / email).