What does Informed Choice Mean in the Age of Neuroscience?

According to the Chronicle of Higher Education,  we are on the threshold of a culture war beyond anything the Tea Party has yet dreamed.  Free will has long perplexed philosophers and theologians, and now neuroscience is entering the fray.

“For centuries, the idea that we are the authors of our own actions, beliefs, and desires has remained central to our sense of self. We choose whom to love, what thoughts to think, which impulses to resist. Or do we?

Neuroscience suggests something else. We are biochemical puppets, swayed by forces beyond our conscious control. So says Sam Harris, author of the new book, Free Will (Simon & Schuster), a broadside against the notion that we are in control of our own thoughts and actions. Harris’s polemic arrives on the heels of Michael S. Gazzaniga’s Who’s In Charge? Free Will and the Science of the Brain (HarperCollins), and David Eagleman’s Incognito: The Secret Lives of the Brain (Pantheon), both provocative forays into a debate that has in recent months spilled out onto op-ed and magazine pages, and countless blogs.

What’s at stake? Just about everything: morality, law, religion, our understanding of accountability and personal accomplishment, even what it means to be human. Harris predicts that a declaration by the scientific community that free will is an illusion would set off ‘a culture war far more belligerent than the one that has been waged on the subject of evolution.'”

For lawyers involved in client-centered conflict resolution work, the requirement that our clients engage in fully informed choice/informed consent is a core value as well as an ethical mandate.  But our traditional explication of what informed consent actually means arises from an 18th century rationalist vision of how the human brain makes decisions and choices.  Discoveries during the past decade depict a brain driven by emotion, not reason, and the implications of this growing body of research challenge us to re-examine old ideas about informed choice.   If we are serious about deep and durable resolution of personal disputes, we will require new techniques to ensure that solutions reflect fully considered client needs and priorities, not immediate emotional reactions.  These techniques will pass muster only if we begin with premises that honor biological realities and recruit the full potential of our triune primate brains.

The programs of the Integrative Law Institute explore these and other ethical challenges for lawyers in the era of “neuro-resolution.”


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