Since the 90’s, neurolaw is on the rise. At the heart of heated debates lies the recurrent theme of a neuro-revolution of criminal responsibility. However, caution should be observed: the alleged foundations of criminal responsibility (amongst which free will) are often inaccurate and the relative imperviousness of its real foundations to scientific facts often underestimated. Neuroscientific findings may impact on social institutions, but only insofar as they also engage in a political justification of the changes being called for, convince populations, (...) and take into consideration the ensuing consequences. Moreover, the many limits of neuroscientific tools call for increased vigilance when, if ever, using neuroscientific evidence in a courtroom. In this article, we aim at setting the basis for future sound debates on the contribution of neuroscience to criminal law, and in particular to the assessment of criminal responsibility. As such, we provide analytical tools to grasp the political and normative nature of criminal responsibility and review the current or projected use of neuroscience in the law, all the while bearing in mind the highly-publicized question: can neuroscience revolutionize criminal responsibility? Answering this question implicitly requires answering a second question: should neuroscience revolutionize the institution of criminal responsibility? Answering both, in turn, requires drawing the line between science and normativity, revolution and dialogue, fantasies and legitimate hopes. (shrink)

Ethical debates over the use of mental health knowledge and practice at the Guantánamo Bay detention facility have mostly revolved around military clinicians sharing detainee medical information with interrogators, falsifying death certificates in interrogations, and disagreements over whether the Central Intelligence Agency’s “enhanced interrogation techniques” violated bioethical principles to do no harm. However, debates over the use of magnetic resonance imaging in the mental health evaluations of detainees have received little attention. This paper provides the first known analysis of such (...) debates over MRI use in the case of Abd al-Rahim al- Nashiri. Through a close reading of open-source legal documents such as defense motions, prosecution motions, judge rulings, and al-Nashiri’s mental health evaluation, debates over MRI use become interpretive contests over the very meanings of mental illness and the extent to which MRI results can verify whether he was tortured in CIA custody. Such work can revitalize interest in the neuroethics of national security. (shrink)

Abstract‘Neurolaw’ in the Netherlands: The justification of the new adolescent penal law from a neurophilosophical perspectiveThe possible and actual normative influence of neuroscientific research has been discussed in numerous publications. One particular part of that debate covered a number of US Supreme Court decisions since the early 2000s on the constitutionality of death or lifetime sentences for minor offenders. The present paper connects these topics to the new Dutch adolescent penal law which allows to treat adult offenders until the age (...) of 22 years under certain conditions according to the rules for minors. The justification of this law referred to adolescents’ and young adults’ brain development in a unique manner. This paper does not only describe the essential steps of the lawmaking process and the legal justification of the new adolescent penal law, but also analyzes in depth in how far the used neuroscientific findings are able to support the normative conclusions. (shrink)

ABSTRACT Some of the most compelling contemporary ethical questions surround 21st Century neuroscientific technologies. Among these, neurocognitive intervention technologies allow an unprecedented ability to alter thought. Concerns exist about their impact on individual freedom, behavior and personhood. They could also distort society, eroding core values of dignity, equality, and diversity. Potent laws are needed to anchor regulation in this rising field. The article explores how the long-neglected human right of Freedom of Thought might protect the integrity of the mind at (...) the legal system’s highest level. Sample cases illustrate how it could be given effect ethically and legally to set boundaries for neurocognitive intervention. (shrink)

Free will, which is dealt with under the title of "acts of the servants" in the Kalām literature, is one of the fundamental issues of the science of Kalām. Benjamin Libet's famous experiment, which he conducted in order to seek an answer to the question of free will, caused the free will debates to move to the field of neuroscience. The logic of Libet's experiment is to compare the neural activity in the brain with the moment when a person is (...) conscious while performing a voluntary act. In Libet's subjects, it was observed that brain activity in the decision-making process started at the moment of unconsciousness. The results of this experiment have long been interpreted in neuroscience as showing that free will is an illusion. Although Libet claimed that conscious intention creates a veto effect by stopping the action at the last moment, recent studies have shown that Libet's veto solution for free will does not work. The most vocal critics of the implications of the Libet experiment from the beginning have generally been philosophers. In this article, the criticisms of the Libet experiments by names such as Marcel Brass, Alfred Mele, and Peter Ulric Tse are presented. However, especially in recent years, neuroscientist Aaron Schurger's experimental and mathematical reinterpretation of the concept of readiness potential, which is key for Libet, and his proposal of an alternative model are mentioned. The article discusses Schurger's claim that the readiness potential may not actually reflect a brain that is ready. According to Schurger, the readiness potential is just random fluctuations that already exist in the brain and is not the sole cause of decisions. In fact, it has been argued that the readiness potential is related to neural noise in the brain rather than to the decision-making process. Thanks to Schurger's critique and the new model, it became clear that the Libet experiment did not rule out free will. But it does not constitute a proof of free will either. While the subject remains a mystery, it is unthinkable for Kalām to remain aloof from these debates. The article also touches upon the views of the Jabriyya, Ash'ariyya, Maturidiyya and Mu'tazilah in Kalām regarding the acts of the servants and questions what the Libet experiment can mean for these schools. Accordingly, while Jabriyya, with its deterministic view, may correspond to an erroneous interpretation of the Libet experiment, Mutazila may be the school that will have the most difficulty in explaining the Libet experiment. As a result, it seems that the views that consider both human agency and God's creation in voluntary acts are the most accurate. Moreover, despite the lack of a clear explanation of the theory of kasb in the Ash'ariyya, the Maturidiyya's assertion that the juz'i will is uncreated and that two influences affect voluntary acts suggests that this school provides the most solid foundation for free will. In order for such discussions to proceed on a healthy basis, it is very important to follow multidisciplinary methods. In addition, as much as Kalāmists should approach scientific studies seriously, it is important that they do not adopt a completely submissive attitude in the face of scientific claims, and that they learn the relevant critiques from experts in the field. Only in this way, we believe that the scientific inferences to be made will be based on a solid ground and that Kalāmists can make serious contributions to the solution. (shrink)