Cognitive Theory, Conscience, and Law

Abstract

The claim of conscience is one that relies on a norm, some ultimate sense of rightness that is not reducible to mere social norm or social construction. Is it still possible, however, for us responsibly to appeal to a sense of conscience when cognitive theory - the science of the brain and mind - describes human consciousness as a function of our biology? May we retain, then, a notion of conscience as an appeal to some transcendent value that is not simply the product of our physical constitution? In this Article, I defend the viability of a notion of conscience, not through avoidance of the insights of cognitive theory but through a demonstration of the space that this theory leaves open for conscience on the basis of cognitive science's own criteria. In my presentation of cognitive theory, I concentrate on its portrayal of human categorization. Cognitive theory demonstrates the reliance of categorization - including legal categorization - on the structuring of the human mind and brain. The more general insight is that we humans have no direct access to reality. Our understanding of reality, whatever it is, is mediated through our structured conceptual systems in the mind. My reservations about cognitive theory turn on whether human and legal categorization lead to the degree of predictability it contends they do. I do not deny that reasoning is structured but maintain that this structuring permits more play than cognitive theory argues. At the heart of my criticism lies an objection that cognitive theory permits an insufficient role for creative metaphor. Creative metaphor is true to cognitive theory in that it operates throughout human categorization, not just in poetry. Contrary to the claims of cognitive theory, however, creative metaphor does not simply build on existing categorization, it also disrupts and transforms categorization. This space for creative metaphor is located outside existing conceptual structures and provides an opening for an appeal to values and norms that, precisely, transcend existing conceptual structures. This is the space for conscience.