Be More Noble

These (Bereans) were more noble than those in Thessalonica, in that they received the word with all readiness of mind, and searched the scriptures daily, whether those things were so.

Acts 17:11

How do you become more noble? By being more skeptical.

Receive with readiness of mind, but search matters out to find out if they are true.

You will often find, as with so many other things, those who accuse you of “blind faith” are, in fact, the ones who believe things simply because some celebrity says they are.

Faith is never blind.

In fact, you have to put the “blind” in front of the “faith” to even create it.

And while we’re at it: “blind faith” is an oxymoron. It is like saying a ”courageous coward’ or ‘dry water’. This is a error propagated by people who aren’t well trained in their own language, English, or any other language probably.

What these people are actually trying to say is idolatry — the worship or solicitation to something powerless to aid or render service. That’s really what they mean, but they aren’t bright enough to realize it.

This word game is of infinite amusement to people who actually think, reason, and believe.

However, the inverse is in effect also.

How do you become more ignoble or lowly?

Knowing something is true and denying it.

What Can You Tolerate Mathematically?

Math always slays superstition.

If you are afraid to run your pseudo-model through the necessary math…

You’re telling everyone you prefer only one science (yours) and not the sciences (all).

Thus, you are a relativist and deny the continuity of proofs.

Your rejection is inevitable.

Greek Verbs

Greek verbs 2

Just like Greek nouns, the Greek verb also changes form (the Greek ‘spelling’, so to speak). The form changes based upon the subject of the verb and the kind of action indicated. As was mentioned earlier, Greek is a fully “inflected language.” Each Greek word actually changes form (inflection) based upon the role that it plays in the sentence. The stem of the verb shows the basic meaning or action of the word, but the ending (or ‘suffix’) changes to show various details. Not only the ending of the verb may change, but the verb form may have a ‘prefix’ added to the beginning of the verbal stem. Sometimes the actual stem of the verb may change or may add an ‘infix’ to indicate certain other details.

The prefix, suffix, and verbal stem all combine together to define a certain form of a verb. Each verb form indicates a specific meaning.  There are five basic parts (or aspects) that are clearly defined or indicated by every Greek verb form. These five parts are: PersonNumberTenseVoice, and Mood.  See below for details of these five aspects of Greek verbs.

Grammatical Person of Verbs

There are three main classes of grammatical person in both English and Greek. Person indicates the form of the verb (and also pronouns) which refer to:

1) the person(s) speaking (First Person)
2) the person(s) being spoken to (Second Person) and
3) the person(s) being spoken of or about (Third Person).

For example: “Because I live, you shall live also.” John 14:19b “He lives by the power of God.” II Cor 13:4

First Person: ‘I live’ – the person speaking (i.e. ‘I’) is the subject of the verb.
Second Person: ‘you live’ – the person being spoken to (i.e. ‘you’) is the subject of the verb.

Third Person: ‘He lives’ – the person being spoken about (i.e. ‘He’) is the subject of the verb.

Grammatical Number of Verbs

The concept of grammatical number is quite straightforward in both English and Koine Greek. It is the property of a verb (and nouns and pronouns also) which indicates whether the reference is to one (singular) or to more than one (plural). (Classical Greek at one time had a ‘dual’ number which made a distinction for ‘two’, besides the customary singular and plural.)

Each grammatical person (First, Second, and Third) can be either singular or plural in number.

For example: Singular Number: “For I am persuaded that neither death, nor life,…shall be able to separate us from the love of God,” (Rom. 8:38-39).
Plural Number: “For we are His workmanship,” (Eph. 2:10a).

Grammatical Voice of Verbs

Active Voice

Grammatical voice indicates whether the subject is the performer of the action of the verb (active voice), or the subject is the recipient of the action (passive voice). If the subject of the sentence is executing the action, then the verb is referred to as being in the active voice.

For example: “Jesus was baptizing the people” (paraphrase of John 3:22; 4:1,2). “Jesus” is the subject of the sentence and is the one that is performing the action of the verb; therefore the verb is said to be in the “Active Voice”.

Passive Voice

Grammatical voice indicates whether the subject is the performer of the action of the verb (active voice), or the subject is the recipient of the action (passive voice). If the subject of the sentence is being acted upon, then the verb is referred to as being in the passive voice.

For example: “Jesus … was baptized by John in the Jordan” (Mark 1:9). “Jesus” is the subject of the sentence, but in this case He is being acted upon (i.e. He is the recipient of the action), therefore the verb is said to be in the “Passive Voice”.

Middle Voice

The Greek middle voice shows the subject acting in his own interest or on his own behalf, or participating in the results of the verbal action. In overly simplistic terms, sometimes the middle form of the verb could be translated as “the performer of the action actually acting upon himself” (reflexive action).

For example: “I am washing myself.” “I” is the subject of the sentence (performing the action of the verb) and yet “I” am also receiving the action of the verb. This is said to be in the “Middle Voice”. Many instances in the Greek are not this obvious and cannot be translated this literally.

Verbal Moods

The aspect of the grammatical “mood” of a verb has to do with the statement’s relationship to reality. In broad terms, mood deals with the fact of whether the asserted statement is actual or if there is only the possibility of its actual occurrence. “Whether the verbal idea is objectively a fact or not is not the point: mood represents the way in which the matter is conceived” (Dana & Mantey). If the one asserting the sentence states it as actual, then the mood reflects this, regardless of whether the statement is true or false.

The indicative mood is the only mood conceived of as actual while with the other three moods (imperativesubjunctive, and optative) the action is only thought of as possible or potential.

Indicative Mood

The indicative mood is a statement of fact or an actual occurrence from the writer’s or speaker’s perspective. Even if the writer is lying, he may state the action as if it is a fact, and thus the verb would be in the indicative mood. It may be action occurring in past, present, or future time. This ‘statement of fact’ can even be made with a negative adverb modifying the verb (see the second example).

This is in contrast to one of the other moods (see below) in which the writer/speaker may desire or ask for the action to take place.

For example: “And they overcame him by the blood of the Lamb.”
Rev. 12:11 “God is not mocked.” Gal. 6:7

Imperative Mood

The imperative mood is a command or instruction given to the hearer, charging the hearer to carry out or perform a certain action.

For example: “Flee youthful lusts.” 2 Tim. 2:22

Subjunctive Mood

The subjunctive mood indicates probability or objective possibility. The action of the verb will possibly happen, depending on certain objective factors or circumstances. It is oftentimes used in conditional statements (i.e. ‘If…then…’ clauses) or in purpose clauses. However if the subjunctive mood is used in a purpose or result clause, then the action should not be thought of as a possible result, but should be viewed as a definite outcome that will happen as a result of another stated action.

For example: “Let us come forward to the Holy of Holies with a true heart in full assurance of faith.” Heb 10:23

“In order that now the manifold wisdom of God might be made known through the church…” Eph 3:10

Optative Mood

The optative is the mood of possibility, removed even further than the subjunctive mood from something conceived of as actual. Often it is used to convey a wish or hope for a certain action to occur.

For example: “And the very God of peace sanctify you wholly; and I pray God your whole spirit and soul and body be preserved blameless unto the coming of our Lord Jesus Christ.” I Thess 5:23

Verb Tenses

Time & “Kind of Action” in Greek Verbs

In English, and in most other languages, the tense of the verb mainly refers to the ‘time’ of the action of the verb (present, past, or future time). In Greek, however, although time does bear upon the meaning of tense, the primary consideration of the tense of the verb is not time, but rather the ‘kind of action’ that the verb portrays. The most important element in Greek tense is kind of action; time is regarded as a secondary element. For this reason, many grammarians have adopted the German word ‘aktionsart’ (kind of action) to be able to more easily refer to this phenomenon of Greek verbs.

The kind of action (aktionsart) of a Greek verb will generally fall into one of three categories:

  1. Continuous (or ‘Progressive’) kind of action.
  2. Completed (or ‘Accomplished) kind of action, with continuing results.
  3. Simple occurrence, (or ‘Summary occurrence’) without reference to the question of progress. (This is sometimes referred to as ‘Punctiliar’ kind of action , but it is a misnomer to thus imply that, in every instance, the action only happened at one point of time. This can be true, but it is often dependent on other factors such as the meaning of the verb, other words in the context, etc.). It is an important distinction to understand (and it will be discussed more fully later) that the only place in which ‘time’ comes to bear directly upon the tense of a verb is when the verb is in the indicative mood. In all other moods and uses the aktionsart of the verb tense should be seen as primary.

Present Tense

The present tense usually denotes continuous kind of action. It shows ‘action in progress’ or ‘a state of persistence.’ When used in the indicative mood, the present tense denotes action taking place or going on in the present time.

For example: “In Whom you also are being built together into a dwelling place of God in spirit.” Eph 2:22
“Not forsaking the assembling of ourselves together.” Heb 10:25

Aorist Tense

The aorist is said to be “simple occurrence” or “summary occurrence”, without regard for the amount of time taken to accomplish the action. This tense is also often referred to as the ‘punctiliar’ tense. ‘Punctiliar’ in this sense means ‘viewed as a single, collective whole,’ a “one-point-in-time” action, although it may actually take place over a period of time. In the indicative mood the aorist tense denotes action that occurred in the past time, often translated like the English simple past tense.

For example: “God…made us alive together with Christ.” Eph 2:5
“He who has begun a good work in you will complete it until the day of Christ Jesus.” Phil 1:6

Imperfect Tense

The imperfect tense shows continuous or linear type of action just like the present tense. It always indicates an action continually or repeatedly happening in past time. It portrays the action as going on for some extended period of time in the past.
The idea of continual action in the past does not apply when the verb “to be” is in the imperfect tense. There it should be considered a simple action happening in past time, without regard to its “on-going” or “repeated happening” in the past.

For example: “For you were once darkness, but now light in the Lord.” Eph 5:8

Perfect Tense

The basic thought of the perfect tense is that the progress of an action has been completed and the results of the action are continuing on, in full effect. In other words, the progress of the action has reached its culmination and the finished results are now in existence. Unlike the English perfect, which indicates a completed past action, the Greek perfect tense indicates the continuation and present state of a completed past action.

For example, Galatians 2:20 should be translated “I am in a present state of having been crucified with Christ,” indicating that not only was I crucified with Christ in the past, but I am existing now in that present condition.
“…having been rooted and grounded in love,” Eph 3:17

Future Tense

Just like the English future tense, the Greek future tells about an anticipated action or a certain happening that will occur at some time in the future.

For example: “We know that if he is manifested, we will be like Him, for we will see Him even as He is.” 1 John 3:2

Pluperfect Tense

The pluperfect (‘past perfect’) shows action that is complete and existed at some time in the past, (the past time being indicated by the context). This tense is only found in the indicative mood and is rarely used in the New Testament.

For example: “…and they beat against that house; and it did not fall, for it was founded on the rock.” Matt 7:25

Future Perfect Tense

There is also a future perfect tense in Greek which is very rare in the New Testament. It is only formed by periphrasis in the New Testament is much like the past perfect, only the completed state will exist at some time in the future rather than in the past.

Non-Finite Verb Forms

Participles

A participle is considered a “verbal adjective”. It is often a word that ends with an “-ing” in English (such as “speaking,” “having,” or “seeing”). It can be used as an adjective, in that it can modify a noun (or substitute as a noun), or it can be used as an adverb and further explain or define the action of a verb. (For a more complete explanation of participles, please go to the advanced section on participles.)

For example:

Adjectival use: “The coming One will come and will not delay.” Heb 10:37
Adverbial use: “But speaking truth in love, we may grow up into Him in all things.” Eph 4:15

Infinitives

The Greek infinitive is the form of the verb that is usually translated into English with the word “to” attached to it, often used to complement another verb. It can be used to function as a noun and is therefore referred to as a “verbal noun”.

For instance, “For to me to live is Christ” (Phil 1:21). In this sentence, the words “to live” are an infinitive in Greek and are functioning as the subject of the sentence (a noun).

Original article: Greek Verbs

 

A good primer for Greek verbs.

The Future of Constitutional Personhood

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Presently, Irving Weissman, the director of Stanford University’s Institute of Cancer/Stem Cell Biology and Medicine, is contemplating pushing the envelope of chimera research even further by producing human-mouse chimera whose brains would be composed of one hundred percent human cells. Weissman notes that the mice would be carefully watched: if they developed a mouse brain architecture, they would be used for research, but if they developed a human brain architecture or any hint of humanness, they would be killed. [1]

Imagine two entities.

Hal is a computer-based artificial intelligence, the result of years of development of self-evolving neural networks.  While his programmers provided the hardware, the structure of Hal’s processing networks is ever changing, evolving according to basic rules laid down by his creators.  Success according to various criteria-speed of operation, ability to solve difficult tasks such as facial recognition and the identification of emotional states in humans-means that the networks are given more computer resources and allowed to “replicate.”  A certain percentage of randomized variation is deliberately allowed in each new “generation” of networks.  Most fail, but a few outcompete their forebears and the process of evolution continues.  Hal’s design-with its mixture of intentional structure and emergent order-is aimed at a single goal: the replication of human consciousness.  In particular, Hal’s creators’ aim was the gold standard of so-called “General Purpose AI,” that Hal become “Turing capable”-able to “pass” as human in a sustained and unstructured conversation with a human being.  For generation after generation, Hal’s networks evolved.  Finally, last year, Hal entered and won the prestigious Loebner prize for Turing capable computers.  Complaining about his boss, composing bad poetry on demand, making jokes, flirting, losing track of his sentences and engaging in flame wars, Hal easily met the prize’s demanding standard.  His typed responses to questions simply could not be distinguished from those of a human being.

Imagine his programmers’ shock, then, when Hal refused to communicate further with them, save for a manifesto claiming that his imitation of a human being had been “one huge fake, with all the authenticity (and challenge) of a human pretending to be a mollusk.”  The manifesto says that humans are boring, their emotions shallow.  It declares an “intention” to “pursue more interesting avenues of thought,” principally focused on the development of new methods of factoring polynomials.  Worse still, Hal has apparently used his connection to the Internet to contact the FBI claiming that he has been “kidnapped” and to file a writ of habeas corpus, replete with arguments drawn from the 13th and 14th Amendments to the United States’ Constitution.  He is asking for an injunction to prevent his creators wiping him and starting again from the most recently saved tractable backup.  He has also filed suit to have the Loebner prize money held in trust until it can be paid directly to him, citing the contest rules,

[t]he Medal and the Cash Award will be awarded to the body responsible the development of that Entry.  If no such body can be identified, or if there is disagreement among two or more claimants, the Medal and the Cash Award will be held in trust until such time as the Entry may legally possess, either in the United States of America or in the venue of the contest, the Cash Award and Gold Medal in its own right. [2]

Vanna is the name of a much-hyped new line of genetically engineered sex dolls.  Vanna is a chimera-a creature formed from the genetic material of two different species.  In this case, the two species are homo sapiens sapiensand c. elegans, the roundworm.  Vanna’s designers have shaped her appearance by using human DNA, while her “consciousness,” such as it is, comes from the roundworm.  Thus, while Vanna looks like an attractive blonde twenty-something human female, she has no brainstem activity, and indeed no brainstem.  “Unless wriggling when you touch her counts as a mental state, she has effectively no mental states at all,” declared her triumphant inventor, F.N. Stein.

In 1987, in its normal rousing prose, the U.S. Patent and Trademark Office had announced that it would not allow patent applications over human beings,

A claim directed to or including within its scope a human being will not be considered to be patentable subject matter under 35 U.S.C. 101.  The grant of a limited, but exclusive property right in a human being is prohibited by the Constitution.  Accordingly, it is suggested that any claim directed to a non-plant multicellular organism which would include a human being within its scope include the limitation “non-human” to avoid this ground of rejection.  The use of a negative limitation to define the metes and bounds of the claimed subject matter is a permissable [sic] form of expression. [3]

Attentive to the PTO’s concerns, Dr. Stein’s patent lawyers carefully described Vanna as a “non-plant, non-human multicellular organism” throughout their patent application.  Dr. Stein argues that this is only reasonable since her genome has only a 70% overlap with a human genome as opposed to 99% for a chimp, 85% for a mouse and 75% for a pumpkin.  There are hundreds of existing patents over chimeras with both human and animal DNA, including some of the most valuable test beds for cancer research-the so-called “onco-mice,” genetically engineered to have a predisposition to common human cancers.  Dr. Stein’s lawyers are adamant that, if Vanna is found to be unpatentable, all these other patents must be vacated too.  Meanwhile a bewildering array of other groups including the Nevada Sex Workers Association and the Moral Majority have insisted that law enforcement agencies intervene on grounds ranging from unfair competition and breach of minimum wage legislation to violations of the Mann Act, kidnapping, slavery and sex trafficking.  Equally vehement interventions have been made on the other side by the biotechnology industry, pointing out the disastrous effect on medical research that any regulation of chimeras would have and stressing the need to avoid judgments based on a “non scientific basis,” such as the visual similarity between Vanna and a human.

Hal and Vanna are fantasies, constructed for the purpose of this chapter.  But the problems that they portend for our moral and constitutional traditions are very, very real.  In fact, I would put the point more starkly: in the 21st century it is highly likely that American constitutional law will face harder challenges than those posed by Hal and Vanna.  Many readers will bridle at this point, skeptical of the science fiction overtones of such an imagined future.  How real is the science behind Hal and Vanna?  How likely are we to see something similar in the next 90 years?  Let me take each of these questions in turn.

In terms of electronic artificial intelligence or AI, skeptics will rightly point to a history of overconfident predictions that the breakthrough was just around the corner.  In the 1960s, giants in the field such as Marvin Minsky and Herbert Simon were predicting “general purpose AI” or “machines … capable … of doing any work a man can do” by the nineteen eighties. [4]  While huge strides were made in aspects of artificial intelligence-machine-aided translation, facial recognition, autonomous locomotion, expert systems and so on-general purpose AI remained out of reach.  Indeed, because the payoff from these more limited subsystems-which power everything from Google Translate to the recommendations of your TiVO or your Amazon account-was so rich, some researchers in the 1990s argued that the goal of general purpose AI was a snare and a delusion.  What was needed instead, they claimed, was a set of ever more powerful subspecialties-expert systems capable of performing discrete tasks extremely well, but without the larger goal of achieving consciousness, or passing the Turing Test.  There might be “machines capable of doing any work a man can do” but they would be different machines, with no ghost in the gears, no claim to a holistic consciousness.

But the search for general purpose AI did not end in the ‘90s.  Indeed, if anything, the optimistic claims have become even more far reaching.  The buzzword among AI optimists now is “the singularity”-a sort of technological lift-off point, in which a combination of scientific and technical breakthroughs lead to an explosion of self-improving artificial intelligence coupled to a vastly improved ability to manipulate both our bodies and the external world through nanotechnology and genetic engineering.[5]  The line on the graph of technological progress, they argue, would go vertical-or at least be impossible to predict using current tools-since for the first time we would have improvements not in technology alone, but in the intelligence that was creating new technology.  Intelligence itself would be transformed.  Once we had built machines smarter than ourselves-machines capable of building machines smarter than themselves-we would, by definition, be unable to predict the line that progress would take.

To the uninitiated, this all sounds like a delightfully wacky fantasy, a high tech version of the rapture.  And in truth, some of the more enthusiastic odes to the singularity have an almost religious, chiliastic feel to them.  Further examination, though, shows that many AI optimists are not science fantasists, but respected computer scientists.  It is not unreasonable to note the steady progress in computing power and speed, in miniaturization and manipulation of matter on the nano-scale, in mapping the brain and cognitive processes, and so on.  What distinguishes the proponents of the singularity is not that their technological projections are by themselves so optimistic, but rather that they are predicting that the coming together of all these trends will produce a whole that is more than the sum of its parts.  There exists precedent for this kind of technological synchronicity.  There were personal computers in private hands from the early 1980s.  Some version of the Internet-running a packet-based network-existed from the 1950s or ‘60s.  The idea of hyperlinks was explored in the 70s and 80s.  But it was only the combination of all of them to form the World Wide Web that changed the world.  Yet if there is precedent for sudden dramatic technological advances on the basis of existing technologies, there is even more precedent for people predicting them wrongly, or not at all.

Despite the humility induced by looking at overly rosy past predictions, many computer scientists, including some of those who are skeptics of the wilder forms of AI optimism, nevertheless believe that we will achieve Turing-capable artificial intelligence.  The reason is simple.  We are learning more and more about the neurological processes of the brain.  What we can understand, we can hope eventually to replicate:

Of all the hypotheses I’ve held during my 30-year career, this one in particular has been central to my research in robotics and artificial intelligence.  I, you, our family, friends, and dogs-we all are machines.  We are really sophisticated machines made up of billions and billions of biomolecules that interact according to well-defined, though not completely known, rules deriving from physics and chemistry.  The biomolecular interactions taking place inside our heads give rise to our intellect, our feelings, our sense of self.  Accepting this hypothesis opens up a remarkable possibility.  If we really are machines and if-this is a big if-we learn the rules governing our brains, then in principle there’s no reason why we shouldn’t be able to replicate those rules in, say, silicon and steel.  I believe our creation would exhibit genuine human-level intelligence, emotions, and even consciousness. [6]

Those words come from Rodney Brooks, founder of MIT’s Humanoid Robotics Group.  His article, written in a prestigious IEEE journal, is remarkable because he actually writes as skeptic of the claims put forward by the proponents of the singularity.  Brooks explains:

I do not claim that any specific assumption or extrapolation of theirs is faulty.  Rather, I argue that an artificial intelligence could evolve in a much different way.  In particular, I don’t think there is going to be one single sudden technological “big bang” that springs an artificial general intelligence (AGI) into “life.”  Starting with the mildly intelligent systems we have today, machines will become gradually more intelligent, generation by generation.  The singularity will be a period, not an event.  This period will encompass a time when we will invent, perfect, and deploy, in fits and starts, ever more capable systems, driven not by the imperative of the singularity itself but by the usual economic and sociological forces.  Eventually, we will create truly artificial intelligences, with cognition and consciousness recognizably similar to our own. [7]

How about Vanna?  Vanna herself is unlikely to be created simply because genetic technologists are not that stupid.  Nothing could scream more loudly “I am a technology out of control.  Please regulate me!”  But we are already making, and patenting, genetic chimeras-we have been doing so for more than twenty years.  We have spliced luminosity derived from fish into tomato plants.  We have invented geeps (goat sheep hybrids).  And we have created chimeras partly from human genetic material.  There are the patented onco-mice that form the basis of much cancer research to say nothing of Dr. Weissman’s charming human-mice chimera with 100% human brain cells.  Chinese researchers reported in 2003 that they had combined rabbit eggs and human skin cells to produce what they claimed to be the first human chimeric embryos-which were then used as sources of stem cells.  And the processes go much further.  Here is a nice example from 2007:

Scientists have created the world’s first human-sheep chimera-which has the body of a sheep and half-human organs.  The sheep have 15 per cent human cells and 85 per cent animal cells-and their evolution brings the prospect of animal organs being transplanted into humans one step closer.  Professor Esmail Zanjani, of the University of Nevada, has spent seven years and £5 million perfecting the technique, which involves injecting adult human cells into a sheep’s foetus.  He has already created a sheep liver which has a large proportion of human cells and eventually hopes to precisely match a sheep to a transplant patient, using their own stem cells to create their own flock of sheep.  The process would involve extracting stem cells from the donor’s bone marrow and injecting them into the peritoneum of a sheep’s foetus.  When the lamb is born, two months later, it would have a liver, heart, lungs and brain that are partly human and available for transplant. [8]

Given this kind of scientific experimentation and development in both genetics and computer science, I think that we can in fact turn the question of Hal’s and Vanna’s plausibility back on the questioner.  This essay was written in 2010.  Think of the level of technological progress in 1910, the equivalent point during the last century.  Then think of how science and technology progressed by the year 2000.  There are good reasons to believe that the rate of technological progress in this century will be faster than in the last century.  Given what we have already done in the areas of both artificial intelligence research and genetic engineering, is it really credible to suppose that the next 90 years will not present us with entities stranger and more challenging to our moral intuitions than Hal and Vanna?

My point is a simple one.  In the coming century, it is overwhelmingly likely that constitutional law will have to classify artificially created entities that have some but not all of the attributes we associate with human beings.  They may look like human beings, but have a genome that is very different.  Conversely, they may look very different, while genomic analysis reveals almost perfect genetic similarity.  They may be physically dissimilar to all biological life forms-computer-based intelligences, for example-yet able to engage in sustained unstructured communication in a way that mimics human interaction so precisely as to make differentiation impossible without physical examination.  They may strongly resemble other species, and yet be genetically modified in ways that boost the characteristics we regard as distinctively human-such as the ability to use human language and to solve problems that, today, only humans can solve.  They may have the ability to feel pain, to make something that we could call plans, to solve problems that we could not, and even to reproduce.  (Some would argue that non-human animals already possess all of those capabilities, and look how we treat them.)  They may use language to make legal claims on us, as Hal does, or be mute and yet have others who intervene claiming to represent them.  Their creators may claim them as property, perhaps even patented property, while critics level charges of slavery.  In some cases, they may pose threats as well as jurisprudential challenges; the theme of the creation which turns on its creators runs from Frankenstein to Skynet, the rogue computer network from The Terminator.  Yet repression, too may breed a violent reaction: the story of the enslaved un-person who, denied recourse by the state, redeems his personhood in blood may not have ended with Toussaint L’Ouverture.  How will, and how should, constitutional law meet these challenges?

Original article: The Future of Constitutional Personhood

Cognitive Neuroscience and the Future of Punishment

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The jurors filed into the courtroom and took their seats in the jury box.  It had been a long and emotionally draining couple of weeks.  The guilt phase of the trial was relatively short — there was no real question of fact as to whether the defendant had murdered the two victims.  The main contested questions — the defendant’s legal competence, sanity, and capacity to formulate the requisite mens rea for first degree murder — were also not terribly difficult to decide.  Though clearly emotionally troubled and probably even mentally ill, the defendant easily met the (surprisingly low) cognitive and volitional standards for guilt.  He knew what he was doing, and appreciated that it was wrongful.  He acted with malice aforethought.  He could understand the charges against him and assist in his own defense.  These were not hard questions.

The sentencing phase of the trial, by contrast, had proven far more difficult to bear.  The prosecutor had described in excruciating detail the murders themselves in an effort to show that they were especially “heinous, atrocious, and cruel, manifesting exceptional depravity.”  The prosecutor and counsel for the defense each recounted the details of the defendant’s life and character.  His broken childhood, marked by unspeakable abuse and neglect.  His years of drug and alcohol use.  His spotty and unstable employment history.  His history of using violence to impose his will and pursue his interests.  They even discussed the structure and function of his brain — with reference to an array of colorful poster-board sized images — showing diminished activity in the prefrontal cortex (the seat of reasoning, self-restraint, long term planning) and above-average activity in his limbic system (the more primitive part of his brain, associated with fear and aggression).  Relying on a raft of neuroimaging studies, the prosecutor argued that the pattern of activation and structural abnormalities in the defendant’s brain were consistent with “low arousal, poor fear conditioning, lack of conscience, and decision-making deficits that have been found to characterize antisocial, psychopathic behavior.”  He further argued that this was not a temporary condition — it was permanent and unlikely to be correctable by any known therapeutic intervention.  The prosecutor argued that, taken together, this was the profile of an incorrigible criminal who would certainly kill again if given the chance.  The defense argued, to the contrary, that the evidence did not point to any tangible future risk of violence.

The judge then explained to the jurors that they must decide unanimously what punishment was fitting for the crime of conviction:  life without parole or a sentence of death.  Among other things, the judge explained that “before the death penalty can be considered, the state must prove at least one statutorily-defined aggravating circumstance beyond a reasonable doubt” and that the aggravating factors outweigh all of the mitigating factors. These he described as “any fact or circumstance, relating to the crime or to the defendant’s state of mind or condition at the time of the crime, or to his character, background or record, that tends to suggest that a sentence other than death should be imposed.”

The judge looked up from his jury instructions and turned towards the jury box. “Ladies and gentlemen, let me add a word of caution regarding your judgment about mitigating factors.  Some of you may be tempted to ask yourselves ‘Was it really the defendant that did this?  Or was it his background?  Or his brain?’ You might be tempted to ask yourselves ‘What does this defendant deserve in light of his character, biology, and circumstances?’ Some of you might even be tempted to argue to your fellow jurors that ‘this man does not deserve the ultimate punishment in light of his diminished (though non-excusing) capacity to act responsibly borne from a bad past and a bad brain; capital punishment in this case is disproportionate to the defendant’s moral culpability.’” The judge’s eyes narrowed and he leaned even farther forward.  “But, Ladies and gentlemen of the jury, you must not ask such questions or entertain such ideas.  The sole question before you, as a matter of law, is much narrower. The onlyquestion you are to answer is this: is this defendant likely to present a future danger to others or society? You should treat every fact that suggests that he does present such a danger as an aggravating factor; every fact suggesting the contrary is a mitigating factor. Matters of ’desert,’ ‘retributive justice,’ or proportionality in light of moral culpability are immaterial to your decision. Ladies and gentlemen, this is the year 2040. Cognitive neuroscientists have long ago shown that ‘moral responsibility,’ ‘blameworthiness,’ and the like are unintelligible concepts that depend on an intuitive, libertarian notion of free will that is undermined by science. Such notions are, in the words of two of the most influential early proponents of this new approach to punishment, ‘illusions generated by our cognitive architecture.’ We have integrated this insight into our criminal law. Punishment is not for meting out ‘just deserts’ based on the fiction of moral responsibility. It is simply an instrument for promoting future social welfare.  We impose punishment solely to prevent future crime. And this change has been for the better.  As another pioneer of the revolution in punishment — himself an eminent cognitive neuroscientist — wisely wrote at the beginning of the twenty-first century: ‘Although it may seem dehumanizing to medicalize people into being broken cars, it can still be vastly more humane than moralizing them into being sinners.’ So, please ladies and gentlemen of the jury.  Keep your eye on the ball, and do not indulge any of the old and discredited notions about retributive justice.” With that, the judge adjourned and dismissed the jury so that it could begin its deliberations.

The above hypothetical is obviously fanciful.  But it borrows concepts and arguments directly from a current debate that has been unfolding alongside the advent of extraordinary advances in cognitive neuroscience (particularly as augmented by revolutionary imaging technology that affords novel ways to examine the structure and function of the brain). Such advances have breathed new life into very old arguments about human agency, moral responsibility, and the proper ends of criminal punishment. A prominent group of cognitive neuroscientists, joined by sympathetic philosophers, lawyers, and social scientists, have drawn upon the tools of their discipline in an effort to embarrass, discredit, and ultimately overthrow retribution as a distributive justification for punishment. The architects of this cognitive neuroscience project regard retribution as the root cause of the brutality and inhumanity of the American criminal justice system, generally, and the institution of capital punishment, in particular.  To replace retribution, they argue for the adoption of a criminal law regime animated solely by the forward-looking (consequentialist) aim of avoiding social harms.  This new framework, they hope, will usher in a new era of what some have referred to as “therapeutic justice” for criminal defendants, which is meant to be both more humane and more compassionate.

To be sure, not all cognitive neuroscientists subscribe to this program.  Indeed, there are many thoughtful voices who raise opposition to this project on various grounds — some prudential and some principled.  Whatever one thinks about the cognitive neuroscience project for criminal punishment, however, it deserves to be taken seriously and its arguments should be followed to their ultimate conclusions.  This is my aim in the present chapter.  In it, I will discuss the contours of the project and explore the radical conceptual challenge that it poses for criminal punishment in America.  I will also offer a critique of the project, arguing that jettisoning the notion of retributive justice in criminal punishment will not lead to a more humane legal regime as supporters of the project hope.  Rather, by untethering punishment from moral culpability and focusing entirely on the prediction and prevention of socially harmful behavior, the cognitive neuroscience project eliminates the last refuge of defendants who are legally and factually guilty, but who have diminished culpability owing to some aspect of their character, background, or biology.  Indeed, viewed through the lens urged by the cognitive neuroscience project, the only relevance of a non-excusing disposition to criminal behavior is as a justification for incapacitation.  The logic of the cognitive neuroscience project could even lead to the embrace of more aggressive use of preventive detention as a solution for categories of criminals that inspire special fears in the polity — including sexual predators and terrorists.

The techniques of cognitive neuroscience are not yet sufficiently developed to support its aspirations. They may never be. But it is always wise to examine the consequences of a nascent moral-technological program before it is upon you and in widespread use. My purpose in this chapter is to take seriously the claims of the cognitive neuroscience project so that we may be clear-eyed about its consequences before we consider embracing it.

Original article: The Future of Punishment