The Scales of the Mind

By MatTehCat | MatTehCat's Blogs | 8 Sep 2021


Abstract:

 

In this paper, I explore what Justice is and whether or not it actually exists, what Rights, Duties, and Liberty are from a Legal perspective, all from an Evolutionary and Neurological Perspective.  By doing this, I seek to take legal theory from the purely ephemeral, historical, and culturally relative state it may find itself within and back to a tangible and biological substrate.  What I conclude is that Justice does exist and can best be described as the desire for and mechanism by which societies remain or become stable, cohesive, and bonded (particularly in the realm of sexual relationships; e.g., through marriage, divorce, partner infidelity, etc.) to avoid societal destabilization, which would threaten the group with disease, intergroup and intragroup conflict or war, famine, and death. Given that these are mechanisms that reestablish nature’s order, they can be seen as artifacts of her retributive justice (natural law, liberty, duties, rights, and justice), and thus justice is not merely an abstract, anthropomorphic artifact, but is a natural phenomenon. Lastly, I highlight how neurological impairments cause anti-social behavior within the group or from any given society’s adjudicators, inform and impact the law, rights, duties, liberties, and thus justice, potentially leading to societal collapse.  This is a working framework and can thus be built upon, but’s ultimate intent is to reconsider how legal systems manifest, why liberty is important, why rights and duties should, shouldn’t, or do exist, and what the ultimate aim of justice should be, all from a biological and evolutionary lens. 

 

 

Introduction

 

Does Justice exist, is life fair? Where would the idea of Justice or Fairness come from if Life or Nature were not fair?  In this paper, I seek to understand how we conceive of Justice, Rights, Duties, Liberty, and Law.  I do this by examining how the Cambridge Dictionary of Philosophy defines Justice and how the Black’s Law Dictionary, 11th Edition defies Justice. By doing this I seek to summarize and formulate how laws are established, which preserve certain liberties, establish rights and duties, and how they seek to maintain and dole out justice. 

After doing this, I explore two working theories on the origins of social behavior and social organization, which lead to legal systems, laws, rights, duties, and justice. I then explore the validity of these working theories in light of the neurological evidence on social cognition, and how these relate to jurisprudence, laws, rights, duties, and of course, justice.

Lastly, I explore how social systems and cognition may impede the development of legal systems and their constituent parts, why they exist, and whether the evolutionary and neurological evidence coheres to the conception of Law, Liberty, Rights, Duties, and Justice as the Black’s Law Dictionary, 11th Edition defines them.  In doing thus, I will conclude by determining whether Justice exists (not merely in the mind), why we have a concept like Justice, why and where judicial systems can go wrong, and why this framework for understanding Law and Justice is useful.

 

Legal Definitions, Quotations, and Summaries

 

To start, what is Justice? The Cambridge Dictionary of Philosophy defines justice as:

“Each getting what he or she is due.  Formal justice is the impartial and consistent application of principles, whether or not the principles themselves are just. Substantive justice is closely associated with rights – i.e., with what individuals can legitimately demand of one another or what they can legitimately demand of their government (e.g., with respect to the protection of liberty or the promotion of equality). Retributive justice concerns when and why punishment is justified. Debate continues over whether punishment is justified as retribution for past wrongdoing or because it deters future wrongdoing. Those who stress retribution as the justification for punishment usually believe human beings have libertarian free will, while those who stress deterrence usually accept determinism.  Corrective justice concerns the fairness of demands for civil damages.  Commutative justice concerns the fairness of wages, prices, and exchanges. Distributive justice concerns the fairness of the distribution of resources.”

 

More formally, Black’s Law Dictionary, 11th Edition (BLD), defines it as

 

“1. The fair treatment of people. 2. The quality of being fair or reasonable. 3. The legal system by which people and their causes are judged; esp., the system used to punish people who have committed crimes. 4. The fair and proper administration of the laws.”

 

This dictionary then goes on to define this term via two quotes, only one of which I will quote here:

“It is certain that law cannot be divorced from morality in so fa as it clearly contains, as one of its elements, the notion of right to which the moral quality of justice corresponds.  This principle was recognized by the great Roman jurist, Ulpian, in his famous definition of Justice: ‘To live honourably, not to harm your neighbor, to give every one his due.’ [Honesete vivere, alterum non laeere, suum cuique tribuere.] All three rules are, of course, moral precepts, but they can all be made to apply to law in one way or another. The first, for instance, which seems pre-eminently ethical, inasmuch as it lays down rules for individual conduct, implies some legal connotation. A man has to shape his life in an honourable and dignified manner – one might add, as a truthful and law-abiding citizen. The juridical counterparts of ethical rules are still more noticeable in the last two rules of the definition. The command not to harm one’s fellow-men may be taken to be a general maxim for the law of crime and tort, while the command to give every one his due may be considered as the basis of private law.  And this last precept is certainly not concerned with morals alone: the individual is not required merely to confer a benefit upon his neighbour, but to render to him that which belongs to him as a matter of right – Paul Vinogradoff, Common Sense in Law 19-20 (H.G. Hanbury et., 2d ed. 1946)”

 

The dictionary then proceeds to enumerate the different types of justice explored in jurisprudence, of which I will mention: civil justice, justice in personam, justice in rem, natural justice, poetic justice, popular justice, preventive justice, retributive justice, rough justice, social justice.

 

Importantly, within the concept of Justice is the implication of three key ideas that are discussed in Legal Theory, e.g., “The command not to harm one’s fellow-men may be taken to be a general maxim for the law of crime and tort, while the command to give every one his due may be considered as the basis of private law.” Thus, we have the concepts of Liberty, Duty, and Rights. 

 

To start, BLD defines Liberty as:

 

“1. Freedom from arbitrary or undue external restrain, esp. by a government <give me liberty or give me death>. 2. A right privilege, or immunity enjoyed by prescription or by grant; the absence of a legal duty imposed on a person <the liberties protected by the Constitution>. – Also termed legal liberty.” 

 

Again, the dictionary provides us with three quotes, one of which I shall invoke:

 

“[Liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. – Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626 (1923).”

 

Again, the dictionary proceeds to enumerate several forms of liberty, including: civil liberty, individual liberty, natural liberty, personal liberty, political liberty, and religious liberty.

 

However, Liberty also entails Duty, which BLD defines as: 

“1. A legal obligation that is owed or due to another and that needs to be satisfied; that which one is bound to do, and for which somebody else has a corresponding right.”


And here, BLD once again provides us with a quote to better conceptualize the idea:

 

“A classic English definition [of duty] from the late nineteenth century holds that, when circumstances place one individual in such a position with regard to another that thinking persons of ordinary sense would recognize the danger of injury to the other if ordinary skill and care were not used, a duty arises to use ordinary skill and care to avoid the injury. A much quoted American judicial definition of duty emphasizes its relational aspects, with a focus on the foreseeability of risk to those ‘within the range of apprehension.’ At about the same time, one of the most creative of American law teachers defined duty as a complex of factors, including administrative, economic, and moral ones, to be applied by judges in their analyses of the legal strength of personal injury cases. – Marshall S. Shapo, The Duty to Act xi-xii (1977).”

 

There are also, once again, different types of duty, including but not limited to: absolute duty, duty of care and skill, duty to act, duty to defend, duty to obey the law, duty to protect, duty to rescue, duty to retreat, duty to speak, duty to warn, moral duty, negative duty, noncontractual duty, passive duty, positive duty, preexisting duty, statutory duty.

 

And lastly, Rights or Right:

 

“1. That which is proper under law, morality, or ethics <known right from wrong>. Cf. WRONG. 2. Something that is due to a person by a just claim, legal guarantee, or moral principle <the right of liberty>. 3. A power, privilege, or immunity secured to a person by law <the right to dispose of one’s estate>. 4. A legally enforceable claim that another will do or will not do a given act; a recognized and protected interest the volition of which is a wrong <a breach of duty that infringes on one’s right>. 5. (often pl.) The interest, claim, or ownership that one has in tangible or intangible property <a debtor’s rights in collateral> <publishing rights>. 6. The privilege of corporate shareholders to purchase newly issued securities in amounts proportionate to their holdings. 7. The negotiable certificate granting such a privilege to a corporate shareholder.”

 

I think it would be prudent to bolster the idea of Right for this paper via three quotes from BLD:

 “It has come to be well understood that there is no more ambiguous word in legal juristic literature than the word ‘right.’ In its most general sense it means a reasonable expectation involved in life in civilized society. As a noun it has been used in the law books in [four] senses. (1) One meaning is interest, as in most discussions of natural rights. Here it may mean (a) an interest one holds ought to be recognized and secured. It is generally used in this sense in treatises on ethics. Or (b) it may mean the interest recognized, delimited with regard to other recognized interests and secured. (2) A second meaning is a recognized claim to acts or forbearances by another or by all others in order to make the interest effective, (a) legally through application of the force of a politically organized society in order to secure it as the law has delimited it, or (b) morally, by the pressure of the moral sentiment of the community or of extra-legal agencies of social control. Analytical jurists have put this as a capacity of influencing others which is recognized or conferred in order to secure an interest. (3) A third use is to designate a capacity of creating, divesting, or altering rights in the second sense and so of creating or altering duties.  Here the proper term is ‘power.’ (4) A fourth use is to designate certain conditions of general or special non-interference with natural faculties of action; certain conditions on which the law secures interests by leaving one to the free exercise of his natural faculties.  Theses are better called liberties and privileges – liberties, general conditions of hands off as to certain situations; privileges, special conditions of hands off exempting certain persons or persons under certain situations from the rules which apply to persons generally or apply to all persons in ordinary situation. – Roscoe Pound, The Ideal Element in Law 110-12 (1958) (mentioning five but reciting only four noun senses).”

 

“Right is a correlative to duty; where there is no duty there can be no right. But the converse is not necessarily true. There may be duties without rights. In order for a duty to create a right, it must be a duty to act or forbear. Thus, among those duties which have rights corresponding to them do not come the duties, if such there be, which call for an inward state of mind, as distinguished from external acts or forbearances. It is only to acts and forbearances that others have a right. It may be our duty to love our neighbor, but he has no right to our love. – John Chipman Gray, The Nature and Sources of the Law 8-9 (2d ed. 1921)”

 

“[I]n most European languages the term for law is identical with the term for right. The Latin jus, the German Recht, the Italian diritto, the Spanish derecho, the Slavonic pravo point both to the legal rule which binds a person and the legal right which every person claims as his own. Such coincidences cannot be treated as mere chance, or as a perversion of language likely to obscure the real meaning of words. On the contrary, they point to a profound connexion between the two ideas implied, and it is not difficult to see why expression like jus and Recht face both ways: it may be said that on the one hand all private rights are derived from legal order, while, on the other hand, legal order is in a sense the aggregate of all the rights co-ordinated by it. We can hardly define a right better than by saying that it is the range of action assigned to a particular will within the social order established by law. – Paul Vinogradoff, Common Sense in Law 45 (H.G. Hanbury ed., 2d ed. 1946).”


Before I list the forms of rights I will be using for this paper, I would like to explain rights as I see them, based on the quotes provided by BLD.  In two senses, the idea of Right exists: Contractual and by being, i.e., natural rights. On contractual rights, these are better described by quote three, provided by Vinogradoff.  In this quote, we get a conceptualization of rights as defined by law, statutory and judicial, but we get a more well-rounded understanding of rights as provided to us by Chipman and Pound. I.e., the concept of rights provided by Chipman and Pound may implicate a legal corps, which may give rise to Common Law systems or more fleshed out Constitutional systems, for which judicial rulings will be more defined, but they also assert that these emanate from an individual’s ability to act cooperatively within a group, in the sense that it has not been delimited by a Constitution but may in fact have the potential to be; this is more so in Chipman’s quote than Pound’s, but Pound does connote this. E.g., “It may be our duty to love our neighbor, but he has no right to our love,” and “In its most general sense it means a reasonable expectation involved in life in civilized society.”  Thus, there is a delineation between the idea of Rights as defined by Chipman and Pound, which naturally arise from a group, and as Vinogradoff defines and seems to understand them, which suggests that it is not the social order that establishes the law, but the law that establishes the social order; i.e., “. We can hardly define a right better than by saying that it is the range of action assigned to a particular will within the social order established by law.” Later in this paper, I shall try to highlight why I think this is a poor conception of Law, Rights, Duties, and Liberty from an Evolutionary and Neuroscientific perspective.

For the types of rights, there are many, of which I will only list a select few: absolute right, civil right, communication right, constitutional right, contract right, contractual right, enumerated right, first-generation rights, fundamental constitutional right, fundamental right, group right implied right, imprescriptible right, inalienable right, incorporeal right, individual right, inherent rights, legal right, minority right, natural right, negative right, personal right, political right, positive right, private right, procedural right, property right, proprietary right, public right, right in personam, right in rem, right of sepulcher, rights of minorities, secondary right, second-generation rights, substantial right, substantive right, third-generation right, unenumerated right, and vested right. 

 

Of all I have defined here, the final word that should be considered for this paper to properly understand how the mind conceives of Justice if it actually exists, and why it exists if it does, is Law – what is it?

 

The BLD defines Law as: 

 

“1. The regime that order human activities and relations through systematic application of the force of politically organized society, or through social pressure, backed by force, in such a society; the legal system <respect and obey the law>. 2. The aggregate of legislation, judicial precedents, and accepted legal principles; the body of authoritative grounds of judicial and administrative actions; esp., the body of rules, standards, and principles that the courts of a particular jurisdiction apply in deciding controversies brought before them <the law of the land>. 3. The set of rules or principles dealing with a specific area of a legal system <copyright law>. 4. The judicial and administrative process; legal action and proceedings <when settlement negotiations failed, they submitted their dispute to the law>. 5. A statute <Congress passed a law>. – Abbr. L. 6. COMMON LAW <law but not equity>. 7. The legal profession <she spent her entire career in law>.”

 

To adequately build upon the concept of Law, I think it will be prudent to describe it via three different quotes, two that describe Law itself, and one that describes consuetudinary law, which will be relevant for understanding Law and Justice as this paper explores them.  Starting with the quote defining Consuetudinary Law:

 

“Great as may be the difficulty experienced by philosophical jurists in defining the ground of the authority of consuetudinary law, there is no room to dispute the importance of its contributions to every system of jurisprudence, ancient or modern. The men who first drew, accepted, and endorsed a bill of exchange did as much for the law as any lawgiver has ever accomplished. They may or may not have acted on the advice of jurists; but, whether or not, they began a practice which grew into custom, and as much was recognized by the tribunals as a law-creating one, -- one conferring rights and imposing obligations. There is much of this – far more probably than is commonly imagined – in the history of every system of law. – James Muirhead, Historical Introduction to the Private Law of Rome 243 (Henry Goud ed., 1899)”

 

“Some twenty years ago I pointed out two ideas running through definitions of law: one an imperative idea, an idea of a rule laid down by the lawmaking organ of a politically organized society, deriving its force from the authority of the sovereign; and the other a rational or ethical idea, an idea of a rule of right and justice deriving its authority from its intrinsic reasonableness or conformity to ideals of right and merely recognized, not made, by the sovereign. – Roscoe Pound, “More About the Nature of Law,” in Legal Essays in Tribute to Orrin Kip McMurray at 513, 515 (Max Radin & Alexander M. Kidd eds., 1935)”

 

“It will help to distinguish three senses of the word ‘law.’ The first is law as a distinctive social institution; that is the sense invoked when we ask whether primitive law is really law. The second is law as a collection of sets of propositions – the sets we refer to as antitrust law, the law of torts, the Statute of Frauds, and so on. The third is law as a source of rights, duties, and powers, as in the sentence ‘The law forbids the murdering heir to inherit.’ – Richard A. Posner, The Problem of Jurisprudence 220-21 (1990)”

 

In all three of these quotes, the notion of law is identified as arising from a body of values and being imposed on the body by an adjudicator, e.g., Sovereign (sometimes this is both the lawgiver and the adjudicator, and sometimes it is not; i.e., sometimes there’s a separation of powers and sometimes there is not).  The important fact here for this paper is the law, and any notion of justice that follows from it, is reciprocal and based on conceptions of values, morals, or ethics that are deemed reasonable and which inform and constrain the body that gives rise to them through, I hypothesize, experience and rationality.  Though there are exceptions to this assertion, such as in Common Law, the recognition that judicial proceedings follow from the moral and ethical body of the people, which consists of individuals, each with socially agreed-upon rights and duties, which are reflected in the law, stands from how BLD has defined Law, Liberty, Rights, Duties, and Justice. 

To explain this further, a body of people, made of individuals, each naturally endowed with inalienable or inherent rights or liberties, may come together, producing duties to uphold those liberties, or rights, manifest a set of propositions, which in themselves reflect and give rise to the implicit duties and rights of the people, which are ultimately revealed through reason and experience and enumerated in the law. The ultimate goal then, which this paper asserts with confidence, is to maintain Justice. In this sense, Justice is supposed to be that which maintains an equitable distribution of rights and duties onto the people under any legal framework such that no one person is unjustly unconstrained or burdened by the law; at least, this follows from the CDP and BLD definitions.  The following part of this paper seeks to explain how this occurs evolutionarily, the neurological foundations for law and most importantly Justice, and an explanation for why this occurs. 

 

The Evolutionary Framework of Law

 

To start, how do the scales of justice manifest themselves, or how did they manifest themselves?  A recent argument made from an evolutionary perspective for cooperation is the interdependent hypothesis (Tomasello et al., 2011). In this hypothesis, group scale cooperation was built upon cognitive and motivational foundations of small-scale cooperation. These demands created “cultural conventions, norms, and institutions at the level of the social group as a whole [requiring] a new way of thinking in which there is a “we” that constitutes not just my current partners in a collaborative enterprise but all of us in this society.”  This “we” may better be understood by the political, public body which contains within it the conventions, norms (morals, values, or ethics) that give rise to the legal institutions that constrain the behavior of the “we.”  I.e., from group cooperation, we have the concept of civil liberties, rights, and duties. 

This cultural development produced a “key ecological” change that made humans less individualistic (independent) and more interdependent; each individual or small-scale group (family) became more dependent on another individual or small-scale group for their survival.  This new ecological selection pressure gave rise to a socially cognitive brain, which required, “cognitive skills for putting one’s head together with others in acts of mutualistic collaboration and communication.”  I.e., a Theory of Mind, a sense of Empathy (being able to put yourself in someone else’s shoes), and an ability to reason from a position that is not yours, to understand and be aware of the social milieu one exists within for one’s own sake and others. This socially cognitive mind, which arose from a social ecology of interdependency, also required that people suppress more individualistic tendencies (Machiavellian tendencies), e.g., “hogging all the spoils or free riding on the efforts of others.”  This would have given rise to social conventions that were socially imposed on the group for the sake of the group’s survival.  These would have bound or yoked the group, ensured the highest level of enterprising, and punished behavior that was deemed damaging to the group. 

This hypothesis is supported by an experimental study done by Redhead and Dunbar, 2013, wherein narrative recollection was analyzed to determine which types of linguistic information were recalled with the greatest ease.  The study found that stories with social content were recalled, remembered more easily than stories with factual or ecological content.  There was no difference between the types of social content remembered, for the most part, although women were more attentive to stories about deception, betrayal or lying, than men were, which may point to an evolutionary origin (e.g., partner fidelity or infidelity).  This is suggestive of the idea that contractual narratives, or covenants and the language therein, may be rooted and derivative of the social narratives that reflect or manifest the conventions of any given people, and thus give rise to their ideas of jurisprudence. I.e., social narratives inform and reflect the norms and conventions that inform any legal system. 

The interdependent hypothesis is not the only one that exists, however. A tandem hypothesis for the development of our neurological architecture, one that is supported by the interdependent hypothesis, is the Social Brain Hypothesis.  Explained in greater detail by Dunbar and Sutcliffe et al., 2012, the Social Brain hypothesis essentially supposes that as homo sapiens, or preceding species of hominids, increased the social bonds that they formed, to about 150 members, the need for larger brains to navigate the social hierarchy increased.  This is in part due to the fact that, not only would external threats need to be kept at bay, but internal cohesion and threats would need to be mitigated and nullified, ensuring that more resources could be used to protect the social unit. Because larger groups formed, greater resources and more enterprising hominids were required.  The combined need for larger brains for navigating the social hierarchy, keeping internal and external threats at bay, and acquiring more resources led to larger brains. This hypothesis is supported by a later paper by Dunbar and Schultz, 2021.

In the 2021 paper by Dunbar and Schultz, the Social Brain relationship is defined by “distinct socio-cognitive grades” and that “bondedness and cognitive abilities,” which are important for reconciling social groups over long periods of time, increase across the cognitive grades.  Interestingly, large and more unstable groups of primates were less coherent, which is thought to be a means of mitigative risk from predation or conflict with neighboring groups in a more unstable environment.  However, for more cohesive groups, bonding and stability were a more efficient way of decreasing threats in very-high risk habitats.  But, as was presupposed in Dunbar and Sutcliffe et al., 2012, this could only be possible if sufficient resources were put into “a significantly larger brain to enable the evolution of novel cognitive mechanisms (and behavioral competencies).”  This increase in brain size via the acquisition of more resources likely produced a feedback loop that increased brain size to produce a bonded and stable group, which necessitated larger brains to acquire more resources to maintain the bonded and stable group.  Importantly, one aspect for the maintenance and manifestation of the bonded and stable groups was “reproductive suppressions,” which enforces standards and rules so that fewer resources (time and energy) need to be spent to manage sexual relationships.  The need to track relationships, specifically complex sexual relationships, was and is a cognitively demanding task, and thus may only be “possible in species,” such as homo sapiens, “characterized by disproportionally large brains for their group size.”

Thus, large social groups necessitated that we develop a social brain (Dunbar and Sutcliffe et al., 2012; Dunbar and Schultz, 2021), which developed and evolved to solve social dilemmas (e.g., the need to enforce standards and rules on relationships through reproductive suppression) and other functions (e.g., the acquisition of resources to maintain bonded and stable groups to decrease threats in very-high risk habitats).  The social brain also likely developed to cooperate with others (Tomasello et al., 2011; Redhead and Dunbar, 2013), which is very difficult in larger social groups, entailing obligations (e.g., social standards and rules to maintain relationships), but also liberties so that the group could be enterprising enough (free enough to acquire resources in the most efficient way) to maintain and produce bonded and stable groups, and thus to reduce risk. One of the mechanisms to produce more pro-social groups, which improve the species ability to survive in very-high risk environments, may be religious activities (Dunbar, 2019).  In this sense, religious services may serve as a source for social narratives, which produce conventions (morals, ethics, values), which are reflections of the rules that maintain social bonds, producing stable groups, which are maintained by the enforcement of standards (e.g., a legal system), increasing cooperation between others to survive very-high risk environments and to protect against external threats. Thus Justice, as that which maintains an equitable distribution of rights and duties onto the people under any legal framework such that no one person is unjustly unconstrained or burdened by the law, is a necessary component for the existence of the human species in any very-high risk environment.  Without Justice, or the notion that stability, equilibrium, or homeostasis need be maintained, the interdependent society (societies) we depend on to live in more risky environments could not, or would not exist.

 

The Neurocognitive Framework of Law

 

The neurocognitive architecture of the human mind also supports the idea of Justice as an abstract concept that’s used to maintain social stability, equilibrium, or homeostasis. In this part of the paper, I will be discussing the cytoarchitecture involved in social cognition, which includes, but is likely not limited to: The Frontal Lobe, the Orbitofrontal Cortex, the Insula, the Anterior Cingulate Cortex, the Temporal-Parietal Junction, and parts of the Limbic System (e.g., the Amygdala, Dorsal Striatum, Ventral Striatum or Nucleus Accumbens). 

Consistently, damage to the frontal lobe has been associated with an inability to form hypotheses and apply those hypotheses from cues in the environment.  In a paper by Cicerone, Lazar, and Shapiro, 1983, subjects with frontal lobe lesions had impaired concept attainment and thus were less likely to produce appropriate working theories or hypotheses from those concepts.  This inability to attend to cues, specifically “multiple cues,” suggests that individuals with frontal lobe damage are unable to discriminate between “relevant and irrelevant sources of information” within their environment.  In another paper, with a similar finding by Dimitrov, Grafman, and Hollnagel, 1996, an Everyday Problem-Solving Inventory (EPSI) was administered to patients with frontal lobe lesions.  The patients were required to produce four solutions to each problem, to the best of their abilities. Juxtaposed by a control group of normal subjects, the patients with frontal lobe lesions produced results that were substantially different, suggesting that patients with frontal lobe damage have difficulty solving problems. With no obvious indication that any area specifically caused this deficit in problem-solving capacities, the paper suggests that the frontal lobe is generally responsible for problem-solving, including abstract problem-solving. And lastly, in a chapter written for Cognitive Deficits in Brain Disorders, Owen, 2001, explains that “frontal lobe syndrome includes deficits in planning, attentional set, and memory.”  This would again reflect the inability to problem solve (the result of proper planning) and hypothesis or working theory formation (deficits in attentional set and memory).  Together, these papers conversely support the idea that the frontal lobe is involved in planning and problem solving, such that without a functioning frontal lobe, organizational complexity could not be achieved; i.e., complex social systems couldn’t have developed, nor the ability to shape them with conventions imposed on the group to ensure stability and cohesion. 

An important aspect of socialization is the recognition of the emotions of others.  In a paper by Schnuerch and Gibbons, 2015, EEG data were analyzed to identify ERPs to highlight when and if agreeing and disagreeing with the majority are represented in the human brain, impacting previously identified cognitive processes. The paper identified activity in the mediofrontal brain and that the brain encodes information about emotional experiences with the group, tracking who we agree and disagree with over time. The impact of a judgment on an item was shown to impact later reanalyzes of that item, as well, suggesting that judgments and their associated valances impact how we socialize with others. I.e., judgments of others (and items) is a necessary social function if the information encoded into the judgment via activity in the frontal lobe (by Cicerone, Lazar, and Shapiro, 1983) is sound; sound theory formation and useful judgments are essential for a pro-social society.  This is supported by another paper by Schnuerch et al., 2014, suggesting the tracking the judgments of others contributes to one’s wellbeing.  That is, the perception of an individual’s social deviance could bias cognitive processing that occurs from the group at a later date.  Particularly, if deviance from the group was detected via the mediofrontal brain, the individual who deviated was less likely to pay attention to the same group on a later task – they weren’t seeing the world the same way, and thus, it was less useful to cooperate with them or to pay attention to their judgments; potentially to reduce negative reactions to their judgments, which deviate from the deviator’s. This latter point is supported by Huang, Kendrick, and Yu, 2014, which cleverly identified that social conflicts elicit an N400-like ERP, which was more substantial for conflict with group opinions than no-conflict or personal ratings/opinions.  This ERP response is associated with tracking violating norms, such as wrong grammar or an incorrect solution to an equation.  This shows an association between the tracking of social relations and whether or not norm violations occurred. This finding is highly supportive of the work found in Redhead and Dunbar, 2013. Together, these findings suggest that tracking norm violations through group responses to group interactions is a necessary component for proper socialization, and that norms and enforcement of norms through judgment are necessary for the maintenance of the group, else there would be no judgment. 

This ability to track the emotions of others in order to maintain group cohesion can be identified in individuals with traumatic brain injury (TBI).  In a paper by Ietswaart et al., 2008, 30 patients with TBI were examined after they had incurred a brain injury, which were contrasted with 32 control subjects.  In an examination one year after the traumatic brain injury, patients with TBI were shown to have deficits in recognizing the emotions of others just after the injury and one year later.  Thus, an individual’s inability to recognize the emotions of others appears to be reflective of issues with the cytoarchitecture of the human mind.  Impairments such as the ones identified in Ietswaart et al., 2008, were examined again in Spikman et al., 2012, assessing TBI patients’ ability to engage in social cognition (emotional recognition, Theory of Mind, and Empathy), and in contrast, cognition (memory, mental speed, attention, and executive function). This study was particularly for individuals with prefrontal lesions. Social cognition was significantly impaired by frontal lobe damage, but there was no correlation between impaired social cognition and non-social cognition.  This suggests that impairments in social cognition were not due to non-social cognitive impairments.  These impairments in social cognition may be related to hypoactivity in the ventrolateral and dorsomedial frontal cortex (Finger et al., 2006).  The findings in Finger et al., 2006 indicate that, once again, the frontal lobe is associated with tracking relevant information, particularly social information, and leads to modifications in one’s behavior relative to the information that’s tracked via the frontal lobe.  Importantly, the Finger et al., 2006 paper also identified increased activity in the temporal-parietal junction, medial prefrontal cortex, and temporal poles to moral and social transgressions compared with neutral stories.  The tracking of moral information and social transgression via the TPJ, mPFC, and temporal poles indicates that, in line with the work by Redhead and Dunbar, 2013, Huang, Kendrick and Yu, 2014, Schnuerch and Gibbons, 2015, and Schnuerch et al., 2014, social deviancy is tracked to maintain the wellbeing of the individual in relation to the group, which is supportive of the interdependent hypothesis and social brain hypothesis. 

Then in larger social contexts, how might cooperation be maintained through enforcement of conventions and norms.  In Fehr and Gachter, 2002, Altruistic Punishment is used to explain why people are willing to engage with others, even strangers, with whom they have no relation.  The punishment of non-cooperators substantially increased how much individuals invested into the public good. In later derivations of the game played in Fehr and Gachter’s study, cooperation sharply decreased or was lower than the punishment condition. Interestingly, investments in the public good were higher (and similar) regardless of whether they occurred before or after non-punishment conditions, indicating the altruistic punishments led to greater investments, regardless of when they occurred. Importantly, it wasn’t just the threat of punishment that led to greater levels of public investment, but actual punishment, indicating that carrying a big stick and beating someone with it is more important than merely speaking softly, especially if you want someone to cooperate.  The efficacy of Altruistic Punishment to improve cooperation between members of a group, as was identified in Fehr and Gachter, 2002, is explained in Boyd et al., 2003.  In this paper, it is shown that altruistic cooperation is more likely to occur in smaller groups, whereas altruistic punishment is more likely to occur in larger groups; groups around 600 people. This presupposes, and for obvious reasons, that defection is easier in larger groups, where it’s easier to remain anonymous; i.e., to lie, cheat, and deceive.  In smaller groups, the payoff for punishment is smaller, and thus enforcement of norms through punishment wouldn’t be necessary or would be redundant. However, in larger groups, where punishment becomes necessary, where it’s easier to be anonymous and to thus defect, where there are more punishers, the cost for defecting, cheating others, becomes too costly, necessitating cooperation through retributive justice. From a neurological standpoint, norm compliance through punishment, as is identified in Fehr and Gachter, 2002, and Boyd et al., 2003, is correlated to the lateral orbitofrontal cortex and the dorsolateral prefrontal cortex, which was identified by Spitzer et al., 2007.  Importantly, in individuals with Machiavellian personality disorder (MPD), lateral orbitofrontal cortex activity is increased. This is thought to be the result of the fact that individuals with MPD pay greater attention to when they can get away with defecting and when there’s greater levels of punishment.  As a result, the MP, in a situation where there is punishment for defecting and in a situation where there’s no punishment, nets the greatest return – he takes advantage of the greatest number of people, destabilizing the social group he is a part of, as resources are essential to the maintenance of the group to ensure stability against threats from within and without – he deceives and manipulates others in a purely self-interested manner.  This latter assertion is supported by King-Casas et al., 2005 (see also Delgado, Frank, and Phelps, 2005 for another paper on trusting good and bad partners), which showed that the dorsal striatum signaled for response magnitude and timing, i.e., intention to trust, indicating a predictive reward and reinforcement model in the context of social exchange.  That is, we learn to engage in social behavior via reward and punishment mechanisms, such that, in healthy individuals, it is rewarding to be pro-social, which supports the interdependent and social brain hypothesis. Secondly, in de Quervain et al., 2008 it was hypothesized that people feel relief or satisfaction when a defector is punished, which would be indicative of the fact that we are a social, group-oriented, interdependent species, not an individualistic, self-serving, Machiavellian species; thus, why the MP earns the most in the punishment and non-punishment trial; he isn’t acting in a pro-social way, merely in a self-serving manner; he would not earn more in the non-punishment trial because he wouldn’t take advantage of his partner(s). Importantly, however, the caudate nucleus activated in their study, which is associated with decision making and the anticipation of rewards. This area of the brain activated when subjects spent more money (MU) to punish defectors.  Interestingly, this desire for and enjoyment from punishing defectors occurred whether the cost was high or low, suggesting there’s anticipated satisfaction from punishing defectors.  This indicates that people prefer to punish norm violators, and thus is supportive of the interdependent hypothesis, social brain hypothesis, and the altruistic punishment model, at a neurological level. 

To further build upon the role of the Frontal Lobe, a paper by Knoch, 2005 examined how individuals process whether a deal or offer is fair or unfair, and what caused them to reject or permit either the fair or unfair offer.  By disrupting the dorsolateral prefrontal cortex (DLPFC) with tMS (transcranial magnetic stimulation) individuals were much less likely to reject their partners’ unfair offers.  Interestingly, this did not cause subjects to rate the offers they accepted as any less unfair than they were, which is suggestive of the fact that the frontal lobe, particularly the right DLPFC, helps to recognize and implement fairness-related behaviors.  In another paper (Cristofori et al., 2015) that examined patients with pTBI (penetrating TBI) individuals with ventromedial prefrontal cortex lesions had reduced anti radicalism scores, indicating a role for the vmPFC in assessing behaviors deemed radical by the group, and an inability to make pro-social judgments, or judgments that do not radically violate established norms. Individuals with orbitofrontal lesions also showed difficulties in engaging in socially appropriate behavior.  In Jonker et al., 2014, impairments that arise due to orbitofrontal lesions resulted in socially inappropriate behavior.  However, patients with these lesions were still able to pass the faux pas test (Theory of Mind test) indicating that there’s a difference between engaging in socially inappropriate behavior and being able to recognize that the behavior is inappropriate. The orbitofrontal cortex, in relation to social regulation, enables people to recognize when they are engaging in socially inappropriate behavior and to regulate that behavior (Solbakk et al., 2021), such that they are essentially subordinated by a superego. To sum, the frontal lobe and orbitofrontal cortex (OFC) help to reject unfair treatment, not to simply recognize it, suppress radical norm violations, and inhibit socially inappropriate behavior in a timely manner, all in support of the social brain hypothesis and interdependent hypothesis. 

Of course, it is important to identify how one recognizes when they are being treated unfairly. In a paper by Güroğlu et al., 2011, sixty-eight young participants ages 10 through 20-years-old engaged in a task the required them to assess fair or unfair offers.  This activity activated the bilateral insula and the dorsal anterior cingulate cortex (dACC).  Rejecting unfair offers activated the TPJ and the DLPFC, suggesting that the developing insula-dACC network was involved in detecting violation norms and that TPJ and DLPFC activity is related to social reasoning (which we identified in the preceding paragraph) but also in recognizing intentionality in others. Generally, the ACC has been identified as an integrative hub for social interactions (Lavin et al., 2013).  The ACC plays a role in weighing costs and benefits (such as fair and unfair interactions) provided by contextual cues. In fact, the ACC plays an important role in determining whether a rule ought to be followed or not. In Buckley et al., 2009 lesions of the ACC, “impaired active reference to the value of recent choice-outcomes during rule-based decision-making.”  Conversely, if this is true, the recognition of whether a rule is sound or not, whether it should be followed or not, is in part mediated by the ACC. This study also identified that OFC lesions impaired the ability to update abstract reward evaluations, again indicating that damage to the OFC impairs a subject’s capacity to recognize when behavior is appropriate, whether it is rule-oriented or not, and importantly, to inhibit or correct such behavior.  These findings play an important role in our understanding of the social brain hypothesis and the interdependent hypothesis, especially in relation to the concept of Justice, Liberty, Rights, Duties, and the Law.  While working in tandem with other areas of the cytoarchitecture, the ACC may play a role in regulating the effectiveness of norms, conventions, or rules, and recognizing when those rules are beneficial or not (the OFC and DLPFC). This is important for the concept of justice, not merely as it is doled out, but as it is conceived of and updated, effectively demonstrating that notions of fairness are not implemented merely by fiat, but by consensus through environmental cues, including factual information. While these contextual cues are consistently updated, the recognition of rules in light of the updated information, in light of the intent of one’s self and others, is mediated by the ACC and thus alters whether we consider the enforcement of any set of norms or rules as fair or just. 

Lastly, the Temporal-Parietal Junction, or Theory of Mind.  Importantly, the TPJ has been identified for belief attribution, such as whether or not an individual is likely to harm you or what their intentions are (Schurz et al., 2014; see Denny et al., 2012 for another meta-analysis of TPJ’s role in relation to the mPFC in spatial and non-mentalizing judgments). This meta-analysis also identified that across the literature on Theory of Mind, the TPJ, and the consideration of an agent’s or agents’ subjective perspectives, allows people to rationalize about why someone acted the way they did; this area is the basis for teleological thinking, and thus, allows others to consider whether one’s actions are sound or not. To understand a person’s behavior in relation to their intention, as Theory of Mind necessitates, descriptive terms such as “stubborn,” “insubordinate,” “aggressive,” and “anxious” must be simultaneously understood and applied to others. To achieve this, the mind, in an overarching manner, recruits the TPJ, Medial Temporal Gyrus, the Inferior Parietal Lobe, the Precuneus, and Medial Prefrontal Cortex. In total, what Schurz et al., 2014’s meta-analysis identified was that the TPJ, in coordination with these other areas of the brain, works to recognize an agent’s intention (what they’re doing), why he may have done what he did (teleological thinking), and helps to recognize that other minds do not only engage in intentional action, but have mental states that contribute to those actions, as well.  This is also supportive of the concept that we evolved as a social species (Social Brain Hypothesis), evolved to be interdependent, necessitating that we understand and constrain each other’s behavior, and that the network that contributes to our Theory of Mind likely helps to facilitate these behaviors, given that many other areas of the brain do so, as well.

Lastly, to understand the root of justice, and all legal aspects that are derived from it, it would be important to recognize the need for homeostasis, which could otherwise be defined as the basis for why we have a concept like justice.  The social brain hypothesis and the interdependent hypothesis necessitate that humans be capable of learning about themselves and their environment, which is a very costly endeavor.  To achieve this, a baseline of stability is required, particularly neural stability (Davis, 2013).  The acquisition of resources has also been contributed to homeostatic regulators for feeding (Rangel, 2013).  However, most importantly, Korn and Bach, 2015, established the importance of homeostasis in decision making. As was recognized by the literature on the ACC, and as was recognized by Korn and Bach, judgments and cost-benefit analyses have to be made between decisions, such as “foraging for high-calorie but hard-to-get” sources of food, and “low-calorie but easy-to-get food,” especially under threat of starvation, internal social forces, or external predation. Given that homeostatic principles necessitate that people (groups or individuals) make decisions, strategize, act, and socialize in a way that sustains appropriate energy levels over time, models of resource acquisition must also follow from these homeostatic principles, which would “maximize the utility of the endpoint outcome of a choice.” But from which direction is endpoint maximization considered: the baseline or the ideal?  The analysis of homeostatic decision-making done by Korn and Bach highlighted the fact that cost-benefit analyses were better explained by biological principles; i.e., anchoring decisions in the desire to avoid starvation rather than maximizing endpoint utility.  This is in line with the literature on the interdependent hypothesis and the social brain hypothesis, such that, the establishment of larger social networks and the evolution of the neural mechanisms involved in social cognition (e.g., the ACC, Frontal Lobe, OFC, DLPFC, TPJ, and Ventral Striatum and Dorsal Striatum), evolved not to maximize the utility of a very high-risk environment (to attain an idea), but to avoid starvation and death within a very high-risk environment.  Thus, Justice is best understood as a concept that explains how the social fabric is maintained to avoid the collapse of societies, which would bring about mass starvation, and potentially extinction – then the goal of the law is not to maximize justice or fairness as an ideal, or some organizational conception of that ideal, but to avoid such tremendous social instability as to deter societal collapse and thus “mass starvation” by maintaining social bonds, particularly mating bonds.

 

 

How the Evolutionary and Neurocognitive Frameworks of Law Affect Jurisprudence 

 

Earlier in this paper, it was identified that a body of law arises from a body of values, or conventions and norms, and is imposed on the political body by an adjudicator (either a sovereign who acts as lawgiver and adjudicator or a body that acts as an adjudicator but who doesn’t write the laws).  Importantly, conceptions of law and justice are reciprocally based on the conceptions of norms and conventions found in the people and individuals, and their narratives, that form the group that’s under the law.  Earlier in the paper, I hypothesized that this was through the experiences of the group and how they rationalized their experience. Secondly, justice was presupposed to be that which maintains an equitable distribution of rights and duties onto the group under the law, such that no one person was unjustly unconstrained or burdened by the law.  All of these findings were supported by the social brain hypothesis, the interdependent hypothesis, and the neurological evidence that supported both of these theories. 

Large scale groups required us to develop a social brain, which developed and evolved to solve social dilemmas and to acquire resources to maintain a bonded and stable group, which developed to decrease risk from threats in very-high risk environments. This required cooperation and the need to punish defectors, which were developed to ensure that larger groups could remain cohesive, and so that defectors would not take advantage of the ability to become anonymous, and thus, retributive justice was born. The ability to enterprise to maintain large-scale groups to decrease risk in very-high risk environments and to ensure that norms were enforced on the group through incentives and punishment became the bedrock for liberties, rights, and duties respectively. As was previously noted in the paper, this conception of rights, duties, and law is more in line with Chipman and Pound’s conceptions than Vinogradoff, who mistook the fact that law manifests from the group, and their norms, and cannot be imposed on them without their consent if the legal system is truly just. Then justice manifested as an abstract concept to ensure that stability and cohesion within the group, between its members, particularly for relationships (mainly sexual) were maintained.  Without this notion of justice, the stability, equilibrium, or homeostasis of the group could not be maintained, which would have caused societal instability and starvation, which was identified later in the paper.  This last aspect is both the genesis for larger groups in a very-high risk environment and why individuals would enterprise to form and maintain large, cohesive, stable groups, and develop legal systems that doled out justice through punishment and reward. To build upon this point, the idea that nature imposes laws on those who exist within her is a sound conception of natural law, rights, duties, and liberties, as they are defined in BLD, such that she makes demands of them, and if those demands are not met, she doles out her punishments.  In this sense, nature does not abide a free rider, and thus doles out justice and punishes those who are unwilling to labor or sacrifice their time for her, particularly to avoid the wrath of her judgment.  In this sense, justice does not only exist within the mind, as will be described in the proceeding paragraphs but is also a naturally occurring phenomenon. 

To understand how we could poorly conceive of justice, or how legal systems may fail to maintain social stability to avoid starvation and death, I will go over how the minds of any group manifest their conception of law, liberty, rights, duties, and justice. The areas of the brain reviewed in this paper were the frontal lobe, the medial prefrontal cortex, temporal poles, the orbitofrontal cortex, the anterior cingulate cortex, and the temporal-parietal junction. 

1. Frontal lobe lesions were correlated with the ability to problem-solve, plan, maintain attentional sets, and memory. Thus, deficits in frontal lobe development, within the populace or its adjudicators, lead to decreased cohesion and stability, as problem-solving, planning, the ability to keep active lists, and memory would be impaired. 

2. The TPJ, and mPFC enabled tacking of social deviancy, and thus whether norms were violated or not, such that, deficiencies in any of these areas (from development or by nature) affect proper socialization, norm enforcement, and judgment.  If these areas are not properly developed, the ability to track norm violations and dole out punishment for norm violations would be ineffective or neutered; i.e., without the ability to think about how others are behaving (social cognition) and to recognize when people are behaving inappropriately, the concept of norms and thus the violation of those norms wouldn’t have evolved; larger, more stable groups could not have formed; larger, more stable, and bonded groups could not be maintained. In addendum, for a society to remain stable, cohesive, bonded, and large enough to survive very-high risk environments, there must actually be norms, conventions, and standards and they must be enforced; people must live interdependently, not in a selfish, purely individualistic manner. 

3. People prefer when norm violators, defectors, and rule-breakers are punished. From this, it can easily be assumed that because we enjoy punishing norm violators, defects, and rule-breakers, it is conducive to our social wellbeing that we punish norm violators, defectors, and rule-breakers; this is in line with the interdependent hypothesis.  The OFC, DLPFC, and vmPFC help to facilitate the rejection and inhibition of unfair treatment, inappropriate behavior, and norm violation, such that disruption of the OFC, DLPFC, and vmPFC would impair the rejection of unfair treatment, inappropriate behavior, and norm violation.  As such, because we anticipate and enjoy punishing norm violators, and we reject unfair treatment, disrupt inappropriate behavior and norm violations through our OFC, DLPFC, and vmPFC, if this ability did not exist or was disrupted through lesion (natural or anthropogenic), we could not impede unfair behavior, disrupt inappropriate behavior and norm violation, and thus we would be less pro-social or our society would become less pro-social. Impairments in these areas would also affect hypothesis formation and planning, as was restated in point 1.

4. Importantly, more than just rejecting unfair treatment, inhibiting socially inappropriate behavior, and norm violation, it is also important to identify norm violations and unfair treatment.  To identify norm violations by consistently updating our contextual understanding of our surroundings, the ACC, insula, and DLPFC is recruited by the rest of the cytoarchitecture involved in social cognition.  The recruitment of the ACC, Insula, and DLPFC allows for rules to be updated in light of new information, the intent of one’s self and others are mediated by the ACC, DLPFC, Insula, and OFC and thus alter the enforcement of any set of norms, adjudicating whether they’re fair or not.  Thus, the law and justice are not merely doled out by fiat, but are updated for the context any group finds themselves within, ensuring that no norm impairs the group’s ability to survive in a very-high risk environment. If this ability were naturally or anthropogenically impaired, tyranny would ensue, suggesting that law is not by fiat or force alone, but is a matter of consensus, informed by those who are under the law. If this congress is disrupted between the people and the enforcement of the law or the implementation of the law, the group under the law could not remain or be stable, bonded, or cohesive enough to survive in any very-high risk environment and thus would be threatened by starvation (resource extinction) and death. I.e., tyranny cannot stand for itself or its subjects and is by its nature pathological. 

5. Lastly, the TPJ.  In coordination with the mTG, IFG, Precuneus, and mPFC, the TPJ works to recognize an agent’s intent (what they’re doing), why they’re doing what they’re doing (their telos), and their mental state, which contributes to their behavior and intent, all in relation to the group, or individual perceiving the action.  This supports the social brain hypothesis and the interdependent hypothesis, which necessitates that people understand each other, what they’re doing, why they’re doing it, and their mental state when they’re doing what they’re doing. Without this capacity, we would be more easily deceived by others, we couldn’t understand the mental states of others and thus people would have a poorer conception of what drives people’s behaviors (what does and doesn’t incentivize human behavior), and lastly, why people are doing what they’re doing.  Without understanding what drives human behavior, punishment of norm violations, or the conception of norm violations and thus norms, a group’s capacity to remain bonded and stable to survive in a very-high risk environment wouldn’t exist or would be poorly conceived of and applied, ensuring the group’s extinction. 

Thus, starting from the ground up, very-high risk environments required humans to bond and form stable and cohesive groups so that nature and her laws could be more easily reconciled, and so that death could be more easily avoided.  As these groups grew, they needed to be more pro-social, and thus needed to understand each other, recognize when a person was acting in a way that threatened the stability and cohesion of the group; they need to develop norms, conventions, or standards that could be enforced through incentives and punishments; and at least, they needed to modify norms so that fairness, stability, equilibrium, or social homeostasis could be maintained, ensuring that the group would not be threatened so severely as to cause social collapse and thus mass starvation and death. Therefore, when one speaks of justice, they are not actually talking about a level playing field, they are talking about the maintenance of society, in so far as social bonds are maintained, particularly mating or sexual bonds and relationships so that the group can remain stable, enterprising, and capable of avoiding starvation and death, which nature and very-high risk environments are perpetually threatening them with if either are imprudently ignored. Lastly, this explains why we have laws, the concept of justice, rights, duties, and liberties; to perpetuate the existence of our group, to survive in very-high risk environments, and to compete against other groups more efficiently. 

This almost perfectly maps onto how this paper conceives of law, liberty, rights, duties, and justice as BLD defines them. A body of people, made of individuals, each naturally endowed with inalienable rights or liberties (natural rights or liberties, endowed through natural law), may come together, producing duties to uphold their liberties or rights (norms which ensure that the people may remain enterprising), reflecting and giving rise to implicit duties and rights, which are embedded in the group’s social organization and norms.  These are then enumerated or revealed through the law and judicial decisions, which ultimately arise through experience and reason [e.g., the establishment of norms through social behaviors and judgments from the group, the recognition of norm violations (ACC and OFC), planning for and engaging in behavior that is in line with group norms (frontal lobe), and understanding the mental states, behaviors, and intentions of others (TPJ and Theory of Mind)]. The ultimate goal of all of these (Laws, Liberty, Rights, and Duties) are to maintain justice, which is social homeostasis, such that a bonded and stable group can avoid social collapse, which would cause them to suffer the effects of a very-high risk environment, which include disease, intergroup conflict or war, starvation, and death. 

 

Conclusions

 

At the beginning of this paper, I asked whether or not Justice exists, whether or not it is merely an artifact of the mind.  I think it is clear, based on the evolutionary literature, the supporting evidence for the evolutionary literature, and the neurological evidence in support of either hypothesis, that Justice is a matter of the mind and nature.  I.e., nature imposes laws on us, which require us to act in certain ways, shaping our behavior, leading us to form certain large-scale social groups if we wish to survive in very-high risk environments, entailing duties and rights for the preservation of the group, which are enumerated in the law.  The origin of our conception of Justice is based on how nature affects us, and thus is an artifact of our desire to avoid nature’s wrath; i.e., disease, intergroup conflict or war, starvation, and death. Our conceptions of justice are then socially informed, seek to maintain social cohesion, stability, and bonds (particularly sexual bonds for stable relationships) to ensure that the group can survive in a very-high risk environment.  When these legal systems are pathologized, or the people who inform the legal systems are pathological, norms and norm violations are or would be eroded, leading to less pro-social behavior; judgments established by the group are or would not be conducive to pro-social behavior; defectors and purely self-serving individuals (Machiavellians) are or would be more likely to take advantage of a less bonded and stable group; the group is or would be bad at, or unable to plan for life in a very-high risk environment such that plans for a more pro-social hierarchy would be impossible to implement; and conceptions of other people (their mental states, behaviors, intentions, and goals) are or would be erroneous, or would not map onto them, such that there would be no implementable theory of mind to judge and work with others within and without the group.

The goal of this paper was to reconceive of how we think about legal concepts, such that we might conceive of abstract judicial concepts from a biological basis. By doing this, I established a new framework to consider judicial decisions, the soundness of those judicial decisions, and whether they are conducive to the wellbeing of the group over time. It is important to not only think about law in the context of any given culture but to understand the biological origins of law, liberty, rights, duties, and justice, and how, by separating ourselves from our natural origins, we may create deleterious effects for society over time, which are exemplified in pathological behaviors rooted in our neurological architecture. 

 

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MatTehCat
MatTehCat

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