25 Interviews for the FNP’s 25th Anniversary: prof. Bartosz Brożek, a philosopher and lawyer, talks to Anna Mateja

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25 Interviews for the FNP’s 25th Anniversary. The Foundation for Polish Science (FNP) celebrates its 25th anniversary this year. To mark the occasion, we have invited 25 beneficiaries of our programmes to tell us about how they “practise” science. What fascinates them? What is so exciting, compelling and important in their particular field that they have decided to devote a major part of their lives to it? How does one achieve success?

The interviewees are researchers representing many very different fields, at different stages of their scientific careers, with diverse experience. But they have one thing in common: they practise science of the highest world standard, they have impressive achievements to their credit and different kinds of FNP support in their extensive CVs. We are launching the publication of our cycle; successive interviews will appear regularly on the FNP website.

Pleasant reading!

Some Thoughts on Thinking

Prof. Bartosz Brożek, a philosopher and lawyer, talks to Anna Mateja.

ANNA MATEJA: How can law and cognitive science inspire each other? At least to a layperson, your particular fields of learning are opposites: one says what reality should be like, the other what it actually is like.

BARTOSZ BROŻEK: You are too attached to the division into different sciences, which in fact serves a purpose mainly in teaching. This is especially clear on the example of cognitive science – a discipline that in itself is interdisciplinary, combining research methods and theories from psychology, neurobiology, philosophy, information science, linguistics and anthropology. Today if we consider a philosophical problem – whether it’s a question about the nature of the mind or the issue of decision-making – it’s only when we take the findings of different fields, e.g. neuroscience, developmental psychology or theory of evolution, that we can say anything interesting about the topic in question.

It enables you to put forward the right problem.

I think so. Between questions of how we should behave, which are the essence of a lawyer’s work, and the category of questions about the nature of a phenomenon, which is the focus of science from physics to neurobiology, there are many intermediate issues. For instance this: what is the “good of the child” that, according to the family and guardianship code, a judge is meant to be guided by when deciding whom to grant the right of guardianship? Is it about ensuring the child proper conditions for overall development, as we read in court judgments? But what specifics do you translate that into? Without the knowledge provided by developmental psychology a judge will be unable to find an answer adequate for the situation. Since we often cannot deal with purely practical questions without knowledge from different disciplines, the division into theoretical and practical problems is largely artificial.

Research projects, such as the ones you conducted under FNP programmes studies on the rationality of legal reasoning or the influence of neurobiology and cognitive science on the shape of institutions of law show that you find philosophical issues the most intriguing. Law is just the material supplying the questions. Why does philosophy come before law for you?

Because philosophy is what most strongly shaped my thinking about the world, including how to practise science and choose research topics. And this happened even though I started my university studies from law and today I’m a researcher at the Faculty of Law and Administration of Jagiellonian University (though it’s at the Department of Philosophy of Law and Legal Ethics). To explain this, I’ll offer a brief lecture on the two levels of thinking that are present in philosophy.

Please go ahead.

There exist traditionally philosophical questions that are the same as those to which other fields of learning also seek answers, e.g. how the mind works is a question asked by philosophers but also psychologists and neuroscientists. But philosophy also has a second level of thinking – which I think is more important – in the form of self-reflection when, to put it briefly, a philosopher thinks about thinking and its determinants. Because, the aim of philosophical activity is to seek answers to fundamental questions to which we should keep returning. How should we understand the human condition? What are our cognitive limitations? Why has science, which is a part of human activity, been so successful and why has the mathematical-experimental method turned out to be one of the most reliable ways of describing the world? Putting these issues forward anew gives us a certain distance – it enables us to look at human cognitive efforts from the broadest possible perspective. It is this skill – critically distancing oneself from popular ideas and research fads – I have in mind when I declare I want to be a philosopher first and foremost.

Civil lawyers are unlikely to ask, for example, whether the theory of declarations of intent, fundamental for civil law, could actually be different. They realize that it was influenced by tradition and conceptual schema developed over centuries. If they negated it, they would stop being lawyers. Philosophers, on the other hand, can question any premise and this does not undermine their identity. It’s the same with neurobiologists: they conduct experiments using brain imaging techniques, they learn to design and interpret them – all this as part of the methodology developed within neuroscience. It is easier for me as a philosopher to question such an approach and ask more fundamental questions enabling me to move beyond a single discipline or conceptual schema.

It seems that the open attitude which enables you to move around different disciplines, to you is a condition for practising interesting science.

I believe so, and that’s why I’m surprised when people sometimes accuse me of denying philosophy its autonomy. Let me explain what I mean. Neo-Thomists say that disciplinary sciences, e.g. neurobiology, biochemistry or physics, study reality in accordance with scientific methodology, but philosophy is a different, in a sense higher kind of cognition. It studies being as being, and the findings of philosophers are timeless and independent of the results of disciplinary sciences. Those representing the school of conceptual analysis believe that knowledge about the world is coded in ordinary language; hence philosophers of law, especially at universities in Britain and the United States, only study the conceptual framework of legal language.

I don’t share the outlook on philosophy of both these trends, because they ask questions and answer them only within their own system. They function in isolation from anything going on in other disciplines, which makes them lose touch with reality. This situation reminds me of an answer once given by a well-known logician, Prof. Andrzej Grzegorczyk, who was asked what he thought of neo-Thomism and said that practising that kind of philosophy was like “sucking your own paw”. That’s why I’m one of those people who believe you cannot shut philosophy off from what is going on in other fields, and in this sense I do in fact negate its autonomy. Even when considering traditional philosophical problems, I try to relate them to current scientific findings. To my mind, philosophical reflection also has a role to play in science: it can help scientists look at their work from a distance.

It also enables them to notice new things, e.g. that the boundary between human rationality and emotionality, as scientists claim, is not as obvious as was believed a few decades ago. Perhaps we need to reflect on the theory of declarations of intent and the conditions of effectively concluding an agreement under civil law. This is one of the issues in the project that you have been carrying out since 2016 under the Foundation for Polish Science’s MISTRZ programme. It could change quite a lot in the contemporary understanding of law.

According to the authors of textbooks and civil law commentaries, people make decisions in a free and rational way, i.e. consciously, after considering all the pros and cons. Contemporary psychologists and neuroscientists, based on knowledge about how the human mind works, consider this approach to be outdated. We make most decisions unconsciously, more under the influence of emotions than rational arguments. We are seldom able to subject them to rational reflection. I can imagine, however, that when someone is signing a contract…

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Prof. Bartosz Brożek, photo by Michał Gmitruk

For example for a loan, in a foreign currency, to buy a home.

…you would think that in such a situation every detail has been well thought out. The protest of borrowers who took out mortgages in Swiss francs, the stories behind their signing of the contracts, show that this is not the case at all. The emotions triggered by the needs we want to satisfy through a contract usually dominate the decision-making process. Civil lawyers do realize, however, that the old image of rationally acting human beings is untrue. That’s why corrective mechanisms have appeared in civil law over the past century, e.g. consumer law which provides for the possibility of easy withdrawal from a contract. But if we were to investigate the conceptual foundations of the theory of declarations of intent taking into account the achievements of contemporary psychology and neurobiology, what would we get? We are considering this with civil lawyers, and are curious ourselves about the results of our research.

What is the purpose of your questions? Another amendment to the civil code based on the answers you obtain?

Willard Van Orman Quine, a philosopher and logician, posited that knowledge could be presented as a web of beliefs: if we change something in the middle, it will affect the whole; if we do it on the edges, the changes are only local. Making changes in the theory of declarations of intent means a change at the centre of the legal conceptual network. The scale of the difficulties this entails can be seen in examples from the history of science, to mention the consequences of the fundamental change of the conceptual network that took place after the Aristotelian-Thomistic vision of the world was abandoned. When Newton wrote his Philosophiae naturalis principia mathematica, he had to acknowledge that gravity acts over a distance. However, this went against the traditional view, originating from Aristotle, that this kind of effect was impossible. That’s why Newton used a trick: he claimed that in his system, gravity was only a “mathematical force” – a kind of fiction, enabling the course of certain phenomena to be calculated. In other words, Newton found it hard to make a fundamental change at the centre of the “web of knowledge”, he preferred to protect himself from criticism by viewing gravity as something fictitious. Nicolas Copernicus behaved in a similar way, maintaining that his model of the Solar System was only a useful calculation tool.

Such an approach is understandable. Views that are fundamental for our vision of the world – in law as well as physics or theology – undergo not revolutionary but evolutionary changes. The team with whom I’m working on a new understanding of the theory of declarations of intent does not expect to effect a Copernican revolution in civil law, either. It’s more an effort to launch a discussion. Where can it lead? It’s hard to say. Maybe we’ll have to introduce some kind of typology of declarations of intent? We can sense even intuitively that it’s one thing to buy bread at the corner bakery and another to sign a long-term loan agreement.

But we cannot probe to see what goes on in people’s minds when they sign contracts, not even using brain imaging, even though the technique is already used in law & neuroscience a new research area in the legal sciences.

And it would be good to remember this. The external manifestation of intent, namely our behaviour, is often the only way in which we provide information on what we want, what we agree to. The law & neuroscience trend emerged in the United States, where lawyers and neurobiologists started wondering for the first time how useful brain imaging methods could be in evidence hearings, in establishing facts with greater probability than methods used previously. One example are brain imaging-based lie detectors that are supposed to be much more accurate than traditional polygraphs. Neurobiologists are divided in their assessment of the usefulness of this technology. Besides enthusiasts there are also sceptics, which doesn’t surprise me because enthusiasts want to use brain imaging not just to determine if someone is lying (which in itself is unreliable and complicated), but also to show what views defendants have, for instance if they’re not racists.

The research involves presenting photos of people of different races and observing the responses of emotional brain areas. Let’s assume that we are testing the emotional responses of police officers who patrol African-American parts of a town by showing them pictures of African Americans. The equipment detects a strong emotional response in the subjects. Does it mean the police officers are racially prejudiced? Or, are their strong emotions caused by memories of difficult experiences connected with working in a particular neighbourhood?

Are you opposed to machines being used to determine someone’s worldview?

Let me say this: in an ideal model of a court trial the judge gathers evidence (and has extensive initiative in this, restricted only by time and money) and is guided by rationality and life experience when assessing it. The result of a brain imaging test will be neither the only nor the most important piece of evidence, and evaluated in the context of other evidence it offers a chance to arrive at true conclusions. Neuroimaging is simply one of the elements of a crossword puzzle in which you have to set out the evidence in such a way as to arrive at “guilty” or “not guilty”.

In an imperfect world – i.e. the one we live in – the respect that “scientific” evidence enjoys by definition can be the decisive factor. Especially when – as is the case in the United States – the guilt or innocence of the accused depends on a jury and not a professional judge. It is essential at least to settle on practical guidelines on how to assess the information gathered thanks to brain imaging.

In the context of neuroscientific research, how should we understand free will, one of the key notions for legal liability. It’s my impression that our conduct is the effect of habits, automatic responses, even brain physiology, rather than conscious decision-making, more often than we think.

I cannot give a precise answer on what free will is – that’s my answer. Intuitively, I know what it means: we assume that people aren’t determined in everything they do and can influence events unfolding with their involvement. Otherwise it would be hard to imagine the social sphere of life, including the possibility of being held responsible. But some notional problems arise. Some people think free will cannot be determined by any causes. Others polemicize that if that were the case, making a decision would be like throwing the dice – it would be purely random. Another doubt: we make many decisions unconsciously, for example by force of habit. Can we say they are free? This isn’t a minor issue, because according to psychologists and neurobiologists, who have been studying unconscious decision-making for several decades, even 95 percent of everyday decisions fall within this category. I’d like to reassure anyone terrified by this fact that if we wanted to decide about every, even most trivial detail after proper consideration, life would simply become unbearable. Evolution knew what it was doing when it equipped us with a mechanism of rapid and usually appropriate though unconscious decision-making.

Why did you prefer to start asking questions about the foundations of law instead of solving complicated legal problems based on regulations?

It’s a matter of predispositions and coincidence.

Surely hard work as well.

That too, but persistence and hard work don’t necessarily have to lead to academic independence. I’ve been quite fortunate – everything has come together to enable me to do what I enjoy – but I also owe it to a few people I met along the way. One of the first of these was Prof. Jerzy Stelmach, whom I met as a first-year law student attending his lectures on the philosophy of interpretation. Though this was only an introduction to the history of philosophy, a presentation of basic concepts, I liked it so much that already in my second year I enrolled in a philosophy course as well.

At the Pontifical Academy of Theology, which wasn’t an obvious choice in Kraków because the university there has a respected philosophy faculty.

But I missed the deadline for submitting documents, while the PAT was more flexible. At the Academy, among others I met Rev. Prof. Stanisław Wszołek who taught philosophy of language. I wrote my master’s thesis and doctoral dissertation under his supervision, and in addition to everything else, I learned a great deal from him, especially about Anglo-Saxon philosophy of language. Today I consider it to be an intellectual mistake, but you have to go through it in order to overcome it and move on with your philosophical inquiry. Then, in a natural way I started reading books on physics and cosmology by Rev. Prof. Michał Heller, thanks to whom I turned to cognitive science. When Rev. Prof. Heller donated his 2008 Templeton Prize to the founding of the Copernicus Centre for Interdisciplinary Studies, he asked me to help run it. And that’s how, in a natural course of events, I could start studying issues on the borderline of philosophy of law and science. Didn’t I say it was all due to coincidence?

I would add that as part of this “coincidence” you have authored or co-authored seventeen books, not to mention many academic articles for the general public. What do you get out of writing about difficult philosophical issues in a way that’s comprehensible to laypersons?

Richard Feynman once said that if we couldn’t reduce a theory in physics to the freshman level, it meant we didn’t really understand it. I quite agree with this approach, because the need to present difficult problems to educated people who are not specialists forces us to rethink what we are working on. I am far from the expertise in this field that Rev. Prof. Heller has, and this is not just my opinion. Asked who poets were, Tadeusz Różewicz once said you didn’t have to write poems to be one, and that Rev. Michał Heller was a good example…

It is a curse of contemporary science that scholars lock themselves within their fields. Far-reaching specialization is not without merit, it certainly enables people to publish a sizable number of scientific papers. Without a broader look, however, science practised like that will at some point become futile, or at least not very creative. I have often found how inspiring law can be for philosophy. It not only suggests topics; for example, a mechanism developed for the reconstruction of legal reasoning once showed its usefulness for explaining a medieval philosophical concept. That’s why I like “hopping” between the two disciplines.

What does the pursuit of learning mean to you?

A series of questions to which you seek answers. Questions lead to other questions. Although no! It’s not so much leading as giving up – constantly making choices about which questions I will consider now and for which ones there won’t be enough time.

Prof. BARTOSZ BROŻEK (b. 1977 in Kraków) works at the Department of Philosophy of Law and Legal Ethics of Jagiellonian University’s Faculty of Law and Administration and is the deputy head of the Copernicus Centre for Interdisciplinary Studies in Kraków. A beneficiary of FNP programmes: START (2004), POWROTY/HOMING (2006), MISTRZ (2015).