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Must Read: Professor Amanda Pustilnik’s “Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions of Law”

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8 Responses

  1. With all due respect to Professor Harris, the first quoted paragraph (in particular, the statements regarding ‘objectivity’ and ‘relative certainty’) here is simply inaccurate or hyperbole gone amok. In other words, therefore, the review is NOT “spot-on.”

    First, Pustilnik does not simply make the claim that “pain is objective,” to wit:

    “This fundamentally phenomenological quality of pain and the experience of phenomenological states generally are subjects of extensive consideration and debate in the philosophy of the mind. The ineffability as well as the intersubjective discontinuity of pain comprise a large part of this debate. Different people certainly may have different physiological susceptibilities and phenomenological experiences, mediated by their context and unique life experiences.”

    “So, while pain is indeed biological and measurable, it is also inherently variable, subjective, and individual.”

    “This means that people who report pain differently actually experience pain differently. Toughness or neuroticism may play some role in mediating the pain experience; but, if so, the effect of personality structure on pain reporting may well be at the level of shaping the experience itself, not the reporting of the experience.”

    The objective component (i.e., the physiology) is said to be “closely related” with the phenomenological dimension, which hardly means we can say, pain is objective simpliciter. Again, the claim of correlation is qualified:

    “The main challenge is that the degree of activation and its relationship to the intensity of pain or discomfort does not correlate very well across subjects.”

    She further notes that “pain’s phenomenology poses certain challenges for reliable pain detection.”

    Perhaps this is what is meant by the “objectivity” of pain:
    “Because pain is phenomenological, the only sure way to know if a person is in pain is to ask.”

    The degree of objectivity, in any case, is fairly modest: “Inferring the presence and degree of acute pain with fMRI poses a greater challenge than demonstrating its absence.”

    Mention is also made of the possible errors (false positives and false negatives) with fMRI-based pain assessments.

    And so forth, and so on.

    As to the article itself, I’ll confine myself for now to something from the first part, namely, claims to the effect that the brain “interprets signals” and “decodes messages,” and note simply that the brain does no such thing: only people “interpret” and “decode,” and it makes no sense to ascribe such capacities or functions to the brain (see, for example, Bennett and Hacker’s book, recent works by Raymond Tallis, and then articles Michael S. Pardo and Dennis Patterson).

  2. Amanda Pustilnik says:

    Patrick,

    Thank you for your thoughtful and astute comments. I’ve read Bennett and Hacker and have found much of interest in their work. However, I admit that I foundered on their repeated assertion that only people, not brains, do X and such (whether interpret or otherwise). But while they repeatedly make that assertion, they don’t satisfyingly explain it. I’m in no way suggesting that we are just our brains or are reducible to our brains – and I hope that comes through in the paper. We are the sum of our entire physically embodied and socially embedded and temporal/contextual existence. But when we’re talking about the brain’s integration of various electrical and chemical inputs from peripheral nerves into what the subject then perceives as an experience of nociception + negative affect, I don’t see the work that it does to insist that “the person interprets” rather than “the brain interprets” the particular peripheral input. The negative affect in part comes from the meanings one ascribes to the sensations, meanings gleaned from one’s life history as a person situated in a time and place, but those meanings are, as well, contained in and operationalized through the person’s brain. One could fairly cavil about the word “interpret,” which seems perhaps to personify the brain, but it seems to me to be a fair word to use in the legal academic mode of discourse, which is not a neuroscientifically highly technical one. My response is not hostile to your comment but openly questioning because I’ve sought to better understand Bennett & Hacker’s insistence on this point.

  3. Amanda,

    I am not saying, nor does Bennett and Hacker for that matter, that one should simply replace the meaning you intend by saying that, for example, “the brain interprets,” with “the person interprets,” but rather the latter makes sense in a way that the former does not.* Moreover, I do not think it is true that the ascription of meaning is, at the same time, or simultaneously, “contained in and operationalized through the person’s brain,” as we have no way of demonstrating such a claim and it argues for far more than any evidence would allow us to infer. This is equivalent to saying that mental states are the same thing as, or redundantly realized through, brain states (in which case ‘mental states’ are superfluous). Parsimony in such things being a desideratum, it may merely and more modestly be the case, for instance, that our ability to ascribe meaning has, as a necessary but not sufficient condition, physiological operations that take place in the brain, that is, unless one is going to assume or argue for some sort of mind-brain identity. Thus, if the brain and the mind were one, in looking at the brain through fMRI (bearing in mind, as Raymond Tallis has explained, fMRI scanning does not directly tap into brain activity, but registers it only indirectly by detecting the increases in blood flow needed to deliver extra oxygen to busy neurons) we would be looking at not just the brain but the mind at work as well, which is what one is essentially asserting in saying that “meanings are contained in and operationalized through the person’s brain,” an argument whose pedigree in one way or another can be traced all the way back to Hippocrates! The brain no more interprets anything than it serves as an “information processor” (the mind on this account being a set of programs or software implemented in the hardware of the brain). I don’t think “interpret” is a fair use of the word because it insinuates or assumes arguable claims about the mind-body or mind-brain relation and the role of consciousness. Now while it may be true that, as you say, we need not “solve” the nature of consciousness to appreciate new findings in the neurosciences, we should be careful about speaking of such things in terms that do appear to follow from contentious claims in the philosophy of mind, particularly if we’re not going to be frank or explicit about such claims or endeavor to argue on their behalf beforehand. It will not do to further claim that it’s a fair use of the word “interpret” in the terms of “legal academic mode of discourse, which is not a neuroscientifically highly technical one,” if one relying on neuroscientific evidence to buttress arguments in legal theory or legal academic discourse. In any case, the various uses and meanings of interpretation (or ‘to interpret’) in legal discourse, from the banal or conventional to those dependent on hermeneutic theories make sense in a complex web of reference and signification involving a host of concepts utterly absent from the discourse of scientific description and discourse in the neurosciences which has its own fairly independent set of technical concepts and its own complex web of reference and signification (different ‘cognitive maps’ as it were, although of course the fact that they’re both maps is part of what it means to have the concepts function within one language).

    Brain scans reveal correlations, and thus neither causal nor identity relations. Neural activity and the phenomenological experience of pain are not all like one another. To say “the brain interprets” implies, suggests, or is equivalent to asserting that there is one sort of event, what we see in the brain, and that such brain events have two sides: a neural and an experiential side. But Raymond Tallis has succinctly summarized the more glaring problems with such a “double-aspect” theory although I think they can be neatly reduced in most instances to an attempt to “smuggle consciousness in to explain how it is that neural activity, which does not look like experience, actually is such experience.” Again, at most we can say that what is taking place in the brain is a necessary but not sufficient condition for mental activity, for consciousness, for ascriptions of meaning, for experience. To see brain activity as at the same time sufficient for ascriptions of meaning, for experiences, for mental states, is to imagine a stand-alone brain (or ‘a brain in a vat’) could make sense of the world. To speak of the brain “interpreting” is to invoke the conceptual language of intentionality, which has to do with things (or objects) or events in the world, outside the brain, thus in one sense we can say the “outward arrow” of intentionality (experiences, memories, beliefs and other propositional attitudes being ABOUT something other than themselves) is responsible for there being any “inward arrow” of (physiological) causation, even while the latter is a necessary condition of the former! Thus: “While the material light gets into the brain by physical means, the gaze that looks out is not a continuation of that chain of physical events. It is a person that looks out, not a brain.” There’s much more that might be said, but this will have to suffice from my end for now.

    Conversely, think of the jarring effect upon hearing the following utterances:

    I’ve got a lot on my brain.
    I’m going to give you a piece of my brain.
    Brain your p’s and q’s.
    I don’t brain.
    Make up your brain.
    Brain your manners.
    I’m going out of my brain.
    Buddhists practice brainfulness.
    I’m of mixed brain.
    A brain is a terrible thing to waste.
    I don’t brain.
    These examples are brain-boggling.
    She has one sharp brain.
    Still your brain.
    She’s well-versed in the philosophy of brain literature.
    Approach the subject with an open brain.
    It concentrates the brain wonderfully.
    I turned my brain to other things.
    I can’t get you out of my brain.
    Out of sight, out of brain.
    It crossed my brain.
    I’m absent-brained.
    I took a load off my brain.
    The thought of her couldn’t be further from my brain.
    I can’t wrap my brain around it.
    My brain went blank.
    They’re like-brained.
    What do you have in brain?
    I have half a brain to refuse her plea.
    My brain was willing, but my body was not.
    An enquiring brain wants to know.
    His brain is rather twisted.
    He has a criminal brain.
    Bear in brain that I mean what I say.
    It’s been on the back of my brain.
    Freud discovered the hidden structures of the brain.
    The date slipped my brain.
    I keep replaying the episode over-and-over again in my brain.
    I can see it in my brain’s eye!
    She’s rather fond of brain games
    There was a consensual meeting of brains.
    If you put your brain to it, you’ll succeed.
    His brain was on vacation, but his mouth was working overtime.
    His brain is gone!
    My brain was unhinged by the thought of divorce.
    He has a brain like a steel trap.
    That’s a pharmaceutical candidate for a brain-expanding hallucinogen.
    She has a certain presence of brain.
    If you don’t brain, can I go ahead of you?
    Brain you, don’t forget to feed the dog.

  4. erratum (first para.): “…if one is relying on neuroscientific evidence to buttress arguments….”

  5. Amanda Pustilnik says:

    Patrick,

    I like your list of idiomatic expressions, but I don’t think some of them sound as strange as you do and I suspect that many of them will come to sound less and less strange as we learn more and more about the brain and the brain-mind relationship. If I have forgotten my keys, I think it makes perfect sense to conceive of that event as a brain-glitch, as a temporary memory storage or recall defect.

    But colloquially – and this goes to the point I was making about legal academic writing, as well, which is translational in nature when one is writing across fields – we likely will continue to say “I forgot my keys” or “it slipped my mind,” just as we say “I’m very cold,” not “my core body temperature has dropped beyond the range comfortable for an organism of my kind.” One is the experiential level of description, one is the biological level of description. Each can have greater descriptive power depending upon what one wants to convey.

    However – and this may be where we part company – I have seen no arguments to suggest that physical experience (thirst, hunger, heat, cold, pain) cannot in principle be fully described in physiological terms, including the physiology that encodes our social and life experiences (like what it may mean to me, uniquely, based on my life history, to feel cold). It is no more mysterious or unsupported to say that the brain performs certain functions than that the liver performs certain functions. Would you object to my saying that “the liver filters the blood” because it appears to impute independent agency to the liver that elides the rest of the person? Or “the heart pumps the blood”? These action verbs do not imply that some homunculus is sitting inside the organ making (what we call) decisions. Similarly, various parts of the brain act in concert to effectuate visual processing and to cause the light that comes in through one’s eye to resolve into an image in the brain. So, the parts of the brain involved in vision “assemble” visual input into an image. While the brain could not be alive for long without the system it’s part of, there is no other part of that system that performs this function. This is not to denigrate the rest of the system but to say that the body’s organs carry out specialized functions, certainly in some interdependence with each other – but not as to every aspect of everything they do. (It would be a particularly obstinate construction of “assemble” to argue that the speaker – me here, but others elsewhere – can’t use the word because it implies some little homunculus sitting in the brain putting together bits of visual images; and that if there isn’t such a function going on the brain, then how can I say “assemble”?) Perhaps a better example: RNA polymerase “transcribes” DNA to produce pre-mRNA. This does not anthropomorphize RNA polymerase into a little transcriptionist; nor does it make sense to say “*the person* transcribes” just because it all takes place with the person (assuming it’s human DNA). The polymerase will do what it does whether or not what I think of as my “self” wills it or no, and will do it entirely without “my” awareness.

    Lastly, as you note – we’re in agreement on this – the limits of neuroimaging, particularly fMRI, are well known and important. Blood flow is merely a delayed proxy for neural activity; even then, for only some kinds of neural activity and at poor spatial resolution. fMRI opens an incredible window on the functioning of the brain – but it’s also as if we still have a really thick shade, in some parts a black-out shade, over that window; we see, as Emily Murphy and Hank Greely memorably put it, “but through a scanner, darkly.” Notably, neuroimaging technologies tell us nothing about the chemical, hormonal and gene transcription aspects of the brain’s functioning. It is *one* tool, one of a growing set that likely best are used together to develop a more full picture of aspects of neurological function.

    Best regards,
    ACP

  6. Amanda,

    (Much of what follows is from standing on the shoulders of others: Bennett and Hacker, Raymond Tallis, Daniel Hutto, first and foremost. I provide some references at the end.)

    “[K]nowing, perceiving, thinking, meaning, etc. are not corporeal features of human-beings and are not ascribable to the body a human being has, any more than they are ascribable to the brain that a human being has. Human beings are not THEIR BODIES. Nevertheless, they ARE bodies in the quite different sense of being a particular kind of sentient spatio-temporal continuant—homo sapiens—and the brain is part of the living human being, as are the limbs. It is not, however, a conscious, thinking, perceiving part—and nor is any other part of a human being. For these are attributes of the human being as a whole.”—M.R. Bennett and P.M.S. Hacker

    “The point to be emphasized here is that metaphysical frameworks, unlike physical frameworks, are not constrained or verified by observation and measurement.”—Daniel Robinson

    “The mind just ain’t in the head.”

    First, I’m grateful for the thoughtful engagement. Second, you are right about where we part company, and I’ll try to pin down the substance and extent of those differences as I see them. The problem with using intentional language with regard to the brain is that people are susceptible to conceptual confusion or ignorance or nonsense and the like about mind/brain questions (or philosophy of mind questions generally) that they are not liable to when speaking of the function of other bodily organs: nobody confuses the heart or the liver with the mind. To see examples of the plethora of possible confusions and silliness that result, see here: http://www.newstatesman.com/culture/books/2012/09/your-brain-pseudoscience-rise-popular-neurobollocks

    And I dare say the fact that you have not seen any “arguments to suggest that physical experience (thirst, hunger, heat, cold, pain) cannot in principle be fully described in physiological terms, including the physiology that encodes our social and life experiences (like what it may mean to me, uniquely, based on my life history, to feel cold),” does not mean such arguments don’t exist, and they do in the philosophy of mind literature. You can indeed describe thirst or pain (which involve, so to speak, nonpropositional and lower levels of consciousness) as it were in physicalist terms but that does not amount to the same thing as describing what is like to have the experience from a first person standpoint because the physiological description is not at the same time a phenomenological description of the experience with regard to consciousness or awareness, and thus it will not do to claim that the physiology “encodes our social and life experiences (like what it may mean to me, uniquely, based on my life history, to feel cold),” as there is no evidence showing that it can do any such thing, for the physiology is just that: the physiology of the experience, it is not the experience(s) itself (themselves). Crudely, objective description and subjective description are of two different things, even if these things be related to each other: the two levels or aspects or descriptions REQUIRE two different viewpoints for a reason, and an illuminating and compelling one at that: “Aspects are established within consciousness, they cannot be used to establish the relationship of consciousness to that which is not conscious.” Furthermore, while there may often be a somatic locus for some sensations, insofar as the experience of these sensations often at the same time involves thinking, believing, feeling, wanting and the like, a somatic locus no longer exists. Physiology cannot, in other words, account for the metaphysical, indeed, the former only gets going after the latter has been settled or shelved. This is true if only because experience involves that which is outside the body and the “egocentric” conscious space or awareness of human beings differs from the physical space of physics and mathematics, let alone biology. We cannot, as Tallis has argued, give a scientific account of this egocentric space, whereas we can, in principle and practice, give a scientific account of physiology and the physical space of our surroundings. The “I” of what “it may mean to me, uniquely, based on my life history,” cannot be identified with any part of the body, the brain or otherwise, or indeed any particular set of experiences, or sets of traits, or succession of events, and especially any piece of matter. This “I” is somehow supra-natural or non-natural (i.e., human beings are, uniquely, both part of, and apart from, the natural world) inasmuch as it is not amenable to physiological description and reduction and there is no locus of storage in the person that records its experiences (which would have to be accessible or retrievable precisely as they were phenomenologically experienced in the first instance). Self-consciousness and the consciousness of what is “out there” is nowhere captured or encoded or recorded within the brain or body. (Please bear in mind that insofar as first-person reports of experience are incorrigible, they are not, as Daniel Robinson reminds us, ‘knowledge’ claims in the ordinary sense.)

    The physiological experiences of thirst, hunger, heat, cold, and pain are never simply their physiology simpliciter but also what we feel and think, how we experience such things: show me a physiological description that captures these experiences. No physiological description captures the fundamental existential intuition (or the assumption of ‘the self’) that “I am THIS…,” the intuition that is the backbone of our sense of self-awareness and agency and which sets us apart from our relatives in the non-human animal kingdom and logically and existentially accounts for the two basic features of first-person being. The self-aspect of course involves a consciousness of self in the sense of bodily awareness or awareness of the behaviorally engaged body. What follows from this involves the attribution of first-person authority, which entails, for example, that I know things about myself (as a species of ‘self-knowledge) that are unknown to others (let alone to physiological unveiling!). This is the awareness of “what it is like to be me.” The memories which contribute to our narrative sense of self and are intrinsically part of a nexus of meaning presuppose this fundamental notion of self. Physiological description is in principle unable to capture or encode the uniquely human freedom that arises from the triune attributes of self-awareness, identity, and true agency, the freedom that accords meaning to our experience and is nowhere to found in any physical or material locus. To speak of “encoding” such experience is to explicitly or implicitly invoke or depend upon images, pictures, or metaphors of the brain or mind that see it on the order of some natural(ized) computer (e.g., the consciousness of mind stands to brain as software to hardware). The “contents of consciousness” as it were, are not amenable to materialist reduction of the sort found in physiological description. Cognitive neurobiology first “mechanizes” what happens in the subject so that the brain or mind becomes an ensemble of mechanisms, then it proceeds to anthropomorphize what happens in various locations or modules of the brain, so we are left with talk about “information processing,” “following rules,” “doing calculations,” “issuing instructions,” “storing information”…or “encoding experiences.” It is no doubt easier to mechanize the mind when we’ve grown accustomed to “conferring intentionality upon systems that are themselves prosthetic extensions of the conscious human body” and routinely mentalize machines like the computer. Neural activity in the brain does not “represent” anything whatsoever with regard to our conscious experience or awareness. Neural activity cannot account for the unity or integrity of our globalized awareness that underpins our daily experience of…anything: bodily sensations, drives, motivations, feelings, thoughts, and so on. To appreciate this does not in any way entail denying the reality of our embodied nature. Knowledge itself, for example, depends not just on the brain and the body, but the “engaged body,” the “enworlded self.” But the mind is not “in the brain,” and physiology does not encode our experience.

    All good wishes,
    Patrick

    · Bennett, M.R. and P.M.S. Hacker. Philosophical Foundations of Neuroscience. Malden, MA: Blackwell, 2003.
    · Bennett, Maxwell, Daniel Dennett, Peter Hacker, John Searle, and Daniel Robinson. Neuroscience and Philosophy: Brain, Mind and Language. New York: Columbia University Press, 2007.
    · Descombes, Vincent (Stephen Adam Schwartz, tr.). The Mind’s Provisions: A Critique of Cognitivism. Princeton, NJ: Princeton University Press, 2001.
    · Finkelstein, David H. Expression and the Inner. Cambridge, MA: Harvard University Press, 2003.
    · Gillett, Grant. Subjectivity and Being Somebody: Human Identity and Neuroethics. Exeter, UK: Imprint Academic, 2008.
    · Horst, Steven. Beyond Reduction: Philosophy of Mind and Post-Reductionist Philosophy of Science. Oxford, UK: Oxford University Press, 2007.
    · Hutto, Daniel D. The Presence of Mind. Amsterdam: John Benjamins, 1999.
    · Hutto, Daniel D. Beyond Physicalism. Amsterdam: John Benjamins, 2000.
    · Hutto, Daniel D. Folk Psychological Narratives: The Sociocultural Basis of Understanding. Cambridge, MA: MIT Press, 2008.
    · Lynch, Michael P. Truth in Context: An Essay on Pluralism and Objectivity. Cambridge, MA: MIT Press, 1998.
    · Malik, Kenan. Man, Beast, and Zombie. New Brunswick, NJ: Rutgers University Press, 2000.
    · McCulloch, Gregory. The Life of the Mind: An essay on phenomenological externalism. London: Routledge, 2003.
    · Pardo, Michael S. and Dennis Patterson, “Minds, Brains, and Norms” (July 10, 2009). Neuroethics. Forthcoming. University of Alabama Public Law Research Paper. Available: http://ssrn.com/abstract=1432476
    · Pardo, Michael S. and Dennis Patterson. “Philosophical Foundations of Law and Neuroscience” (February 6, 2009). University of Illinois Law Review, 2010. University of Alabama Public Law Research Paper No. 1338763. Available: http://ssrn.com/abstract=1338763
    · Ratcliffe, Matthew. Feelings of Being: Phenomenology, Psychiatry, and the Sense of Reality. New York: Oxford University Press, 2008.
    · Robinson, Daniel N. Consciousness and Mental Life. New York: Columbia University Press, 2008.
    · Tallis, Raymond. The Explicit Animal: A Defence of Human Consciousness. New York: St. Martin’s Press, 1999 ed.
    · Tallis, Raymond. I Am: An Inquiry into First-Person Being. Edinburgh: Edinburgh University Press, 2004.
    · Tallis, Raymond. The Knowing Animal: A Philosophical Inquiry into Knowledge and Truth. Edinburgh: Edinburgh University Press, 2005.
    · Tallis, Raymond. Aping Mankind: Neuromania, Darwinitis and the Misrepresentation of Humanity. Durham, England: Acumen, 2011.
    · Travis, Charles. Unshadowed Thought: Representation in Thought and Language. Cambridge, MA: Harvard University Press, 2000.
    · Velmans, Max. Understanding Consciousness. London: Routledge, 2000.

  7. Amanda Pustilnik says:

    Patrick,

    Although we have some points of significant agreement, among them that the metaphysical by definition cannot be reduced to the physical, we have some points of philosophical disagreement as well – although I’m less of a reductionist than you might take me to be; I would not identify with, e.g., the strong forms of eliminative materialism. Since these debates remain unsettled in the philosophy of mind, there are only better and worse arguments, not right and wrong.

    I’m unsure if it’s generous or presumptuous of you to have supplied me with a reading list of materials in my own field. For what it’s worth, I’ve read everything on that list, teach quite a bit of it in my seminar, have benefitted from Michael Pardo’s comments in particular on my work over time, and don’t think much of rigor of a couple of the other authors you’ve cited. But disagreement in this field is productive and important as scholars in many areas grapple with what, if anything, we learn about the nature of mind and mental phenomena from the empirical sciences.

    Regards,

    ACP

  8. Amanda,

    The reading list was merely be way of providing the sources that I find useful, that I’ve dependend upon, that have influenced me (so as to be merely ‘informative’), please do not read anything else into it, as I have no idea whatsoever what you might have read that appears there (thus it was neither generous nor presumptuous on my part).

    I do not think (nor did I make the claim that) you identify with eliminative materialism of any sort as I was replying, for the most part, to some of the assumptions, implications, or beliefs I think are associated with or follow from the proposition that “physiology…encodes our social and life experiences (like what it may mean to me, uniquely, based on my life history, to feel cold).”

    I happen to believe not only that there are better and worse arguments in the philosophy of mind but also that some of these arguments are better at tracking the truth than others so, in that sense, I do believe some of the arguments are “right” (in the sense of being closer to the truth), and others “wrong” (mistaken, farther from the truth). Of course we may learn much from arguments we believe wrong or mistaken. I’m not sure these questions in the philosphy of mind will ever be “settled,” much like many of the long-standing debates in the history of philosphy, still, I do believe some of the arguments in the philosophy of mind (they are not the more fashionable ones) are on the right track and others wide of the mark, some egregiously so.

    All the best,
    Patrick