It has been suggested that judicial sentencing be adapted to methods for monitoring and measuring brain activity, mostly in civil law for calculating moral damages, and in criminal law to individualize sentences. In criminal law, the idea is to go from a retributivist conception of the law where criminals deserve their sentences, to a consequentialist conception of the law where considerations for consequences for the group, deterrence, prevention and treatment prevail.
In this framework, supported by many scientists e. Neuroscience, although certainly not sufficient to choose between legal conceptions, could nevertheless help us improve sentences in terms of efficiency by refining mental disorders or differential diagnosis. Again, neuroscience would not revolutionize law but improve already well-embedded practices on the matter of potential future neurolaw revolutions, see Kolber, Moreover, they give rise to the age-old ethical questions relating to the moral admissibility of certain physical treatments.
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Some scientists argue for attenuating immoral behaviors, such as racism and physical aggression, through TMS interventions or psychotropic drugs Douglas, Sociology also presented itself as a good means to evaluate recidivism Wootton, Neuroscience only counts here as another possibility on the long list of potential treatments for criminals [for a parallel drawn between the s aversion therapies, as portrayed in A Clockwork Orange Burge, Kubrick , and new techniques such as DBS and WBS, see McMillan, ].
Some authors delve specifically into the nexus between enhanced capacities and legal responsibility, questioning for example the duty to take enhancers in certain contexts and the corollary liability for omissions , the breach of the standard of care that omitting to take enhancers could amount to, and the legal causal nexus between this type of omission and harm see Goold and Maslen, , for a discussion on those three points and a refutation that enhancers would give rise to these legal situations.
Given the extensive literature on moral enhancement, we will only focus here on the influence of cognitive enhancement in determining criminal responsibility, and accordingly, on the validity of the underlying premise behind most claims relating to enhanced responsibility. That premise goes roughly as follows: if criminal responsibility is capacitarian and neuro-interventions can enhance our capacities, then those interventions could lead to an enhanced responsibility.
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In other words, responsibility would account for hypercapacity. In a synthetic and systematic manner, Nicole Vincent explores the speculative question of responsibility enhancement, arguing specifically on the validity of the aforementioned premise Vincent, Intriguing though that idea may be, it is not immune from criticism. Responsibility is attributed once certain criteria have been met: it is a threshold, not a scale The difference in severity across sentences is explained by the absence of certain criteria and not a partial fulfillment thereof.
The same goes for attenuating or aggravating circumstances: those only come into play once mens rea has been established. Against this objection, Vincent contends that although responsibility is a threshold, that threshold could be elevated through new cognitive enhancement techniques. To know what a future reasonable person will be for the western world is a sociological rather than legal question. In the hypothesis that the future reasonable person would have multiple brain implants, criminal law would remain unchallenged. Only the social norm would have changed. It is also worth noting that this new norm would only concern cases of objective responsibility i.
Therefore, the so-called enhancement would not be considered enhanced at all, being the new standard. Secondly, if we allow ourselves to speculate on a responsibility that would be proportional to capacities, we could only observe the disastrous and unfair consequences of such a notion. To be able to judge over-capable, or under-capable, individuals responsible for negligence, we need an objective standard to compare them to. The multiplication of standards contradicts de facto the principle of equality in law, and would lead to segregated judicial orders for different classes of population.
Besides, the matter of diagnosing hypercapacity remains delicate. Such a diagnosis could not be done at trial, since the accused would thereby never know the applicable standard until their first encounter with the law. Should we then test people every year during the whole of their lives in the eventuality that they be criminally charged? How would such tests work?
Although this is somehow theoretically possible — for example, through behavioral modeling of developmental trajectories e. To conclude, and extend beyond the initial scope of this section i. Ministers, bosses, military superior officers are all people carrying a heavier responsibility tied to their functions.
The weight of responsibility in those cases does not flow from greater capacities, but rather from the authority they exercise. Neurological strength, however, gives you an authority that is primarily intimate, and not social: you exercise it on yourself, not on others. Is it not fairer for a social institution, by which people judge each other, to lie in the choices individuals make in relation to one another? To her credit, Vincent recognizes the importance of choices that she addresses through the angle of consent to responsibility.
She nonetheless considers them as one out of many aspects of responsibility.
In this regard, we disagree: criminal responsibility, at least in liberal democracies, is rooted in a social contract. In the course of our analysis, we have defined criminal responsibility as an essentially practical concept independent from free will and other metaphysical questions. Hence, criminal responsibility is immune from debates on determinisms and their affiliated answers. We have recalled that the current and retributivist model of criminal responsibility affords a central place to the individual in relation with the sentence.
That model is anchored in current popular beliefs regarding accountability and the promotion of certain values. If traditional neuroscience disciplines want to revolutionize law, they cannot simply establish facts. On their own, without any ideological aim, they cannot substantially modify normative practices. They must also engage in a political justification of the changes being called for, convince populations, and take into consideration the ensuing consequences. In turn, this approach must acknowledge and deal with technical, interpretative and legal obstacles that limit the uniform application of neuroscience.
Far from a revolution, neuroscience proves to be more beneficial when entering in a subtle dialogue with the law in order to assist the truth-seeking function of the courts. While neurolaw often evokes the neuroscientification of law, it could more properly refer to the juridification of neuroscience, i. The authors declare that the research was conducted in the absence of any commercial or financial relationships that could be construed as a potential conflict of interest. We thank Melissa Gregg, Patrick Haggard, Stefan Hnatiuk, and Nura Sidarus for comments and useful discussions regarding earlier versions of this manuscript.
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