Law, Neurobiology and the Soul: Part I – Introduction

Later this week I’m heading to Poland for the “What is Life:  Theology, Science, Philosophy” conference.  It will be a chance to connect with my dissertation adviser, meet some new people, and take in some interesting presentations (and, I hope, enjoy some good Polish food and drink!).  I’m presenting a version of my paper Towards a Critical Realist Theology of Law, Neurobiology and the Soul.  This paper in many ways serves as a sketch of my dissertation project, which I’m sure will change and develop as I proceed.  I’ll post portions of it in this series of posts.  Here is Part I.

Towards a Critical Realist Theology of Law, Neurobiology and the Soul

The neurosciences present fundamental challenges to traditional religious conceptions of the nature and functions of positive law.  These challenges stem from the deep revolution the neurosciences promise for our understanding of the nature of the “self.”  For many neurobiologists, the “self” is reducible to natural history, physics, and brain chemistry.  We are nothing more than the impulses of our brains.  At most, human “will” is an emergent property of the brain that allows us to choose among some set of evolutionary strategies.

Some contemporary legal theorists seek to tie the neurobiological understanding of the “self” to theories of positive law.  In their view, positive law is entirely a social construction shaped by sociobiology.  Normative notions of “justice,” “intent,” and “retribution,” for them, are somewhat archaic.  Positive law is best understood as an instrumentalist tool for calibrating behaviors that are construed by various social groups to benefit the group.  Any notion of a deeper ethical basis for law is elided as superfluous.  As noted philosopher Michael Ruse succinctly frames this view, “Ethics is a collective illusion of the genes, put in place to make us good cooperators.  Nothing more, but also nothing less.”[1]

This paper summarizes the challenges neurobiology presents to Christian theories of positive law, and suggests a way forward.  It begins by summarizing the Western Christian tradition’s tight linkage between theological anthropology and theories of positive law.  It next discusses the contemporary Christian theological engagement with neurobiology, which is surprisingly diverse.  The discussion then turns to points of convergence and divergence between Christian and neurobiological accounts of law and personhood.  It concludes with an outline of a methodological proposal for constructive engagement between Christian theories of law and the neurosicences.

Christianity, the Soul, and the Functions of Positive Law

The Soul in the Patristic Tradition

Throughout the Christian intellectual tradition, the “self” historically has been conceived of as multivocal and persistent.[2] The “soul” or the “spiritual” nature of human beings distinguished human from animals and rendered humans eternally accountable to God.

For Athanasius, for example, the soul was the seat of rationality and the nexus between the human person and divine law.  As Athanasius said in his early fourth century treatise Contra Gentes, “the rational nature of the soul is strongly confirmed by its difference from irrational creatures. For this is why common use gives them that name, because, namely, the race of mankind is rational.”[3] Because of the  rational soul, human beings, and only human beings, become amenable to law.  Athanasius notes that

the body is not even constituted to drive itself, but it is carried at the will of another, just as a horse does not yoke himself, but is driven by his master. Hence there are also laws for human beings to practise what is good and to abstain from evil-doing, while to the brutes evil remains unthought of and undiscerned, because they lie outside rationality and the process of understanding. I think then that the existence of a rational soul in man is proved by what we have said.[4]

Likewise, Augustine emphasized the link between the rational soul and Divine law.  For Augustine, as for Athanasius, the rational soul distinguished humans from brute animals, enabling humans to seek transcendent knowledge.  Yet the soul requires discipline.  “[O]wing to the liability of the human mind to fall into mistakes,” Augustine warned, “this very pursuit of knowledge may be a snare to him unless he has a divine Master, whom he may obey without misgiving, and who may at the same time give him such help as to preserve his own freedom.” [5] Therefore, a mortal person “walks by faith, not by sight,” and “refers all peace, bodily or spiritual or both, to that peace which mortal man has with the immortal God, so that he exhibits the well-ordered obedience of faith to eternal law.”[6]

These examples from Athanasius and Augustine reflect a broad theme in the Christian tradition:  the rational soul is the seat of the intellect and the will, and it naturally impels human beings towards God’s law.  Human beings, however, do not obey God’s law.  The familiar refrain of the Biblical Book of Judges highlights what happens when the legitimacy of secular law is eroded:  “In those days Israel had no king; everyone did as he saw fit.”[7] As modern people, we are inclined affirm this as good, but as the story of the Levite and his concubine in Judges 19 makes clear, the fruits of this circumstance are betrayal, rape, oppression and violence.[8]