As our understanding grows of how the brain works, so does our discomfort about the ethics — and the efficacy — of our legal systems. The more we learn about the brain and the mind that it creates, the more we wonder about our notions of right and wrong, intent and harm, retribution and rehabilitation.
Some neuroscientists and other cognitive investigators have taken their own bold leaps into the controversies, producing works such as Michael Gazzaniga’s Who’s in Charge? and the second half of David Eagleman’s Incognito.
While brain experts have made useful contributions to the discussion, they are nonetheless limited by their lack of experience in the legal arenas in which contemporary brain research will play out.
That experience gap has now been filled, with the publication of The Punisher’s Brain: The Evolution of Judge and Jury. Morris B. Hoffman, the book’s author, is both a veteran criminal court judge and an adjunct professor of law at the University of Colorado and the University of Denver, where he teaches courses on law and neuroscience and on law and the biology of human nature.
Hoffman’s insights into the connections among the latest neuroscience, the law, and the actual practices of our legal systems provide an uncommon — and uncommonly engaging — overview of how and, more important, why human societies punish those who transgress against it or one of its members.
Hoffman’s analysis is based on the core reality that we are primarily a social species. Both our inborn nature and our cultural applications of that nature trace inevitably to our social character.
This book uses evidence and arguments from neuroscience, primatology, anthropology, history, and evolutionary psychology to trace the trajectory of our punishing brains across time, analyzing how that trajectory informs some of our most deeply held legal principles and how it might animate some legal reforms.
Hoffman explores punishment in the context of what we know in each of these areas of study. His book is deeply researched, and it is richly documented. Indeed, the chapter end notes are an essential and insightful part of his larger story, taking some of his more interesting details into their own equally interesting sidelights.
The Punisher’s Brain deals extensively with each of the three main categories of punishment. First-party punishment is where we use guilt and conscience to restrain ourselves. Second-party punishment is where we intervene when we see another being cheated or abused. And third-party punishment is where we delegate the power to punish to the group as a whole, or to an official agency of the group.
Each of these types of punishment is traced through history, and each is explained in terms of how it may have evolved to meet our social needs. Up-to-date social psychology experiments and empirical brain studies are vital parts of each discussion.
What makes this book different from the many other recent publications about the brain and the law is that Judge Hoffman takes his insights back into the courtroom, examining our court and justice systems in detail. His practical insights into the application of punishment to a modern, complex society are perhaps the most useful parts of The Punisher’s Brain.
All in all, Hoffman’s book is a very worthwhile read.