Maks Del Mar talks to us about his new co-edited volume, Cognitive Legal Humanities, in Critical Analysis of Law – an open-access, interdisciplinary legal studies journal.
The cognitive sciences were – perhaps still are – one of the fastest-developing areas of scholarship of the last half-century. For a long time, the dominant image of the mind in the cognitive sciences was that of a computer, and thus of the mind as computational. Second-generation cognitive science, however, challenged this orthodoxy, and in particular emphasised the mind as something embodied, embedded, enacted, and extended. Later still, a fifth ‘E’ was added: emotional.
Cognitive science, especially in its second-generation form, has been hugely influential, also in humanities research. Work, for instance, on metaphor – as in cognitive metaphor theory – has been very important, also in legal scholarship. But the humanities have also historicised the cognitive sciences, showing, for instance, how much of the insights about the mind – especially in second-generation cognitive science – can be traced back to the rhetorical tradition, and its influences, for instance on eighteenth century philosophies of mind.
What we wanted to do with this special issue is bring together three bodies of scholarship: work in the cognitive sciences, especially second-generation; work in the humanities that has engaged with the cognitive sciences; and legal scholarship. As there is little work in cognitive legal humanities in law departments, we mainly commissioned work in other departments, especially from English, and we invited those scholars to think about connections between their work in cognitive humanities and legal forms and practices.
One of our prompts was a frustration with the lack of engagement with the humanities by scholars interested in both law and cognitive science. We think it is vital to draw on the humanities here, not only to historicise the terms that cognitive science works with (such as ‘cognition’ itself), but also to bring out the politics of cognition as well as convey the rich and dynamic relations between cognitive operations and culture.
We thus have papers in the issue on, e.g.:
The pieces range across various areas of law (criminal law, public law) and legal traditions (Common, Civil, Islamic, Jewish), as well as various genres of cultural expression (drama, film, and poetry). It’s a wide-ranging, exploratory issue, which we hope will provoke further reflection, and also suggest new kinds of links that can be made between work in cognitive science, the humanities, and law.
In the broadest terms, we wish to illuminate the politics of relations, over time, between minds, bodies, and cultures.
Cognitive legal humanities (CLH) is an emerging domain of interdisciplinary legal scholar-ship that triangulates three bodies of discourse and research: the cognitive sciences (and, by extension, philosophy of mind), the humanities, and law. It is thus related to, but distinct from, cognitive legal studies (e.g., see the new Law and Cognitive Sciences series published by Cambridge University Press), which does not tend to engage with the humanities. Cognitive legal studies is of course a most valuable domain of scholarship and nothing we say here is intended as a criticism of it. Our case is instead a positive one: a case for what the humanities can bring to the table, enriching the scholarship further. A key question we might then ask is: what do the humanities add to cognitive legal studies? Why and how might triangulating the three be so valuable?
Prompted in part by the wonderful essays in this issue, we offer three broad and overlapping answers to that question: first, the humanities remind us how crucial it is to historicize cognition and its relations to law, while also inviting reflection on what is at stake in adopting a certain way of historicizing; second, the humanities offer us many resources for engaging with the politics of cognition and its relations to law; and third, the humanities remind us of the constitutive links between cognition, law, and culture, offering us at the same time complex ways of theorizing and historicizing culture. Undoubtedly, there are many other ways of arguing for the importance of the humanities to the study of legal cognition, but these three are surely crucial, and they are also very strongly present in the six essays of this issue.
Why is it important to historicize cognition and its relations to law? As a starting point, it is vital to recognize that cognition has a history. This goes for the very term “cognition”—like any other terms with which we theorize, this one is not neutral, and already frames and primes the inquiry in particular ways. The last few decades alone have witnessed a considerable degree of contestation over the term. During that time the cognitive sciences have moved from “first-generation cognitive science,” with its focus on the individual mind or brain, often conceived of as a computer (and thus dominated by computational models of cognition), to “second-generation cognitive science,” with its emphasis on emotion, the environment, and the body. Cognitive science has changed radically only in the space of a few decades and continues to change rapidly. There are now very lively and sophisticated debates over just how the mind is enactive, just how the environment is experienced as a set of affordances, how minds think in tandem and over long periods in particular social structures, and all this in a wide range of contexts, stretching from technology to law, and from law to art, and beyond.
Even thus, in the very short recent history of cognitive science, we can see remark-able shifts of emphasis and terminology, indicating just how contested the term “cognition” is. When, however, we consider these shifts in a broader historical frame, we can also see how the theoretical language we are using limits our perspective, and what awareness of other theoretical languages and frameworks can open up. As Jesús Velasco discusses in his paper, there was no “medieval cognitive science,” but there was what we may call a “medieval science of the soul.” The term “soul” has a very a different set of connotations to “cognition,” and equally different to, say, “mind,” “intellect,” “sensation,” “intelligence,” “reason,” or any other terms we may wish to use. For example, a reference to “soul” suggests attention to the animating spirit (“anima,” is one word for soul, and “spirit” is yet another related term, connected to the French term for mind, “esprit”) of a person, incorporating rather than separating out a person’s physical, emotion, sensory, and rational capacities (this relatedness, for instance, of “sense” as meaning and “sense” as something experienced or felt, is also important in Benedict Robinson’s investigation of the history of the term “sentence”). Of course, as Velasco also mentions, the medieval science of soul—developed to such refined subtlety amongst the very neglected scholars of the Islamic tradition—is itself a reworking and re-imagining of an Ancient Greek tradition, and in particular of the work of Aristotle (across his corpus, but including his very important work, De Anima).
Just like our own time, none of these periods have uncontested doctrines of mental phenomena: there is, in each of them—Ancient Greek, Ancient Roman, medieval, early modern, etc.—enormous variety and richness in discussions of cognition. Further, contemporary scholarship continues to revise our understandings of how past theorists understood and debated cognition—e.g., for Ancient Greece alone, there has been important recent work on how the Greeks understood “imagination,” and there have been equally important and revisionary recent works on aspects of mental life in medieval and early modern Eu-rope. Discoveries are also showing surprising connections across these various times and spaces—e.g., Benedict Robinson, another author in this issue, has recently explored the remarkable echoes between second-generation cognitive science in the twentieth century and early modern theories of the rhetorical mind. In his paper for this collection, Robinson alludes to how Erasmus, in his work on De Copia, draws on a model of what we might call “circumstantial cognition” (a very rhetorical picture of the mind) that he finds in Homer, with Ulysses understood as someone capable of adapting to shifting circumstances, changing shape and color (like an octopus) accordingly, and thereby exercising a form of intelligence that the Ancient Greeks called “metis.” We might make other links here with Erasmus’s circumstantial reasoning or situational flexibility: for instance, with equitable judgment (as both Robinson and Ellen Spolsky discuss in their papers), and thus also with the kind of reasoning one does with maxims. This, in turn, might well be connected to the ideals of Renaissance manhood, as expressed for instance by Baldassare Castiglione, in his sixteenth-century The Book of the Courtier, with a gentleman aspiring to exhibit sprezzatura, a kind of graceful wit, a liveliness and lightness of mind and body, which is perhaps akin to the Ancient Greek “metis.”