Neuroscience, law and free will

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December 13, 2011 by galudwig

UK Human Rights Blogger Adam  Wagner wrote an article on neuroscience and how it might (r)evolutionise the law. Now, in no way whatsoever am I claiming that I know anything about neuroscience, or about law for that matter, but I must say that some of the things discussed in the article sounded rather scary to me. For instance, quoting a report called Neuroscience and the Law,

might neuroscience fundamentally change concepts of legal responsibility? Or could aspects of a convicted person’s brain help to determine whether they are at an increased risk of reoffending?

Legal responsibility begins and ends with the violation of another person’s life, liberty or property. Although I can see some merit in analysing a convicted felon’s brain to see whether he or she is more likely to commit another crime in the future (in a free society, I suppose this information could be used by private security companies to determine their insurance premium), I shudder at the thought of a neuroscientist picking at my brain to see whether I might commit a crime in the future..

One aspect of the report which has been widely reported is the questions it raises about the age of criminal responsibility, which is currently age 10 in the UK. This is important to get right; children should not be blamed for actions if they are not intellectually capable of understanding or controlling them. 

If a child finds a gun in its father’s cupboard, goes out and accidentally shoots my wife, should the child — or perhaps its parents — not be blamed for the death of my wife simply because they are not intellectually capable? What if a mentally handicapped person rapes my wife? Is this person then absolved from the obvious crime that was committed on account of not understanding that this violated her rights?

I feel that the law should not be about the intent of action, but about the action itself.

whether lawyers like it or not, neuro-scientific evidence is being increasingly used in courts, and it would therefore be sensible to learn more about it, and quickly. This is more likely to lead to evolution not revolution, with lawyers and judges understandably suspicious of science which seeks to explain away human behaviour, and reduce the role of human agency and free will, principles upon which the system of law is founded.

Understandably, indeed. The whole system of law depends on human agency and free will.

As long as the discussion of the application of neuroscience in law is limited to issues such as the question of murder versus manslaughter, it can add to our understanding. But never can neuroscience be used to prevent future crimes, even though there are most likely advocates out there of such social engineering schemes. Surely, if neuroscientists can understand the human brain in such a way that they could give a very accurate probability assessment of which individuals are more likely to offend and which aren’t, then crime prevention can focus on those who are more likely to commit crimes, using an argument similar to that of racial profiling at airports. But this clearly constitute yet another serious departure from sound principles of law and a step towards a totalitarian police state. Fortunately, there is no mention of such plans. Yet..

But the report does not recommend large-scale changes  to the legal system, but rather that formal and regular interactions are set up between neuroscientists and lawyers through:

  • an international forum,
  • a better system for identifying quality expertise,
  • the incorporation of an introduction to neuroscience and behavioural genetics into law degrees,
  • training being made available for lawyers and probation officers
  • further research in various key areas.

This all sounds very sensible.

Does it, though? One could easily come up with hundreds more bullet points involving all kinds of interactions between disciplines, new trainings, further research etc etc, which could somehow make the legal system better. But which ones are cost-effective? Would the gains outweigh the costs? If the wrong decision is made, then how are we to know this? Unless we allow true competition in the provision of law in society, we will be stuck with one single agency deciding what must and shall be done, based on reports by interest groups who obviously have financial stakes in the issues. And the rest of us must take what is offered, without any choice being given in the matter.

Will neuroscience revolutionise the law? « UK Human Rights Blog.


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