Abstract

VAN MARLE, Karin  and  SLABBERT, Melodie Nöthling. The absent mind in legal science. Tydskr. geesteswet. [online]. 2012, vol.52, n.1, pp.68-84. ISSN 2224-7912.

The law 's reflection of the human mind is an uneasy and conflicting one. By tracing the influence of dualism and positivism on constructions relating to the mind in certain areas of the law, such as criminal law and private law, the article illustrates how, over time, these influences have contributed to a reductionist and impoverished conception of the human mind, culminating in a total absence of the mind in legal thinking generally. The fiction of the individual as an autonomous and rational agent that has dominated legal thinking since the time of the Enlightenment is in conflict with recent cognitive research that emphasises the notion of an embodied mind. However, as the article reveals, this approach, supported by lawyers and cognitive neuroscientists of the Project on the Law and the Mind Sciences of Harvard University, is in factyet another reductionist and dualist one which perceives the brain and the mind as one. The article next turns to a discussion of selected postapartheid legal approaches that point to other ways of thinking and doing law. By relying on approaches that favour "slowness" in respect of legal thinking and interpretation - which perceive the Constitution as memorial instead of monument and which refuse the dominating nature of law - space for the absent and negated mind may open up. Following Adriana Cavarero 's reading of Penelope, the slow rhythm of weaving and unweaving may bring the complex relationship between the law and the ideal, and the law and the mind, to the fore. The type of law and legal approach that may result from this "slowness" and "refusal", as one of the authors argues, is a law of reflection; a law that refuses thoughtless (instrumental) accounts. In the final instance, the article suggests that the mind 's place in the law is not the context of the abstract or ideal, or the material and empirical, but an in-between, liminal space.

Keywords : mind; state of mind; dualism; positivism; free will; neuroscience; postmodernism; ethics of discomfort; ethical feminism; transformative constitutionalism; slowness; monument; memorial; refusal; judgement.

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