Neuroethics and the Law

Danielle Kleymeyer 2010/11/23 01:04

Neuroethics and the Law

The law in the United States is a fluid creature that transforms constantly to adapt and accommodate the decisions of the courts. However, the law is strict in its construction that is based upon the Constitution of the United States and the Amendments. The law is a dichotomous system that contains lower courts, which render legally binding decisions within their jurisdictions that answer the particular questions that occur within their venue. Still the courts provide all the participants in the system the opportunity to challenge the lower courts decisions by appeal to the higher courts on the grounds that the lower courts decision is not in compliance with our constitutional construct. It is this ability to make innovations that allows all new technology the opportunity to change the past decisions based upon the idea; that though stare decisis is the commanding facet for appeals that with new informations yielded by science change may be allowed. With the ever expanding nature of science, and the growing field of neuroscience the promise of explanations and an emerging understanding of why crime may be committed opens the door for not only new defense tactics but a better understanding of human behavior and misbehavior. It is with this idea of expansion that there is the opportunity for neuroscience to make a significant impact upon the legal system by allowing the law to evolve. This would undermine current thoughts of criminal behavior and the “get tough” punishment, which originated in the 1960’s and focuses on the need to arrest and punish rather than to rehabilitate (Lab).

The Law

As it stands now the law is more interested in processing cases in a quick, fashionable matter with most cases ending with a plea bargain. This due process model makes it so that even if a case makes it past arraignment to a trial, a conviction is the main goal of a prosecutor (Lab). The conviction requires not only hard evidence but also that the defendant is established as guilty of mens rea, (guilty mind) mala prohibita (prohibited behavior) or mala in se (inherently evil behavior). The one similarity is that the intention, of the individual’s mind, must be a criminal state of mind. However, despite legal matters the question still dwindles down to the core matter of why someone would commit a crime. From this issue there is also the need to limit the possibilities of defense in terms of insanity as it would relieve the defendant of responsibility as they could not understand the nature of their action nor hold the reasoning for them (Sapolsky 1788). It is with this in mind that the law has turned to science for answers, and one source for those answers is found in neuroscience. In Greene’s view, the existing legal principles have virtually no assumptions over the neural basis of criminal behavior. “As a result they (legal principles) can comfortably assimilate new neuroscience without much in the way of conceptual upheaval: new details, new sources of evidence, but nothing for which the law is fundamentally unprepared” (Greene 1775). This statement perpetuates the basis of the legal system as neuroscience may reshape the future sense of justice, and affect the way we contemplate the nature of people’s minds beyond our prevailing ideas that exist today. Neuroscience in the Law

Still there is an argument that though the law cares about what scientific information may reveal about the causes for criminal behavior, it is what could be found within people’s definite capacity in legal and moral responsibilities. With this concern in mind, neuroscience is brought in to possibly reveal the neural basis of thinking in the individual. The rational that people have a basic capacity for choice and free will, coupled with certain beliefs and desires that are capable of producing behaviors, leaves the law to assume that neuroscience has nothing new on the horizon that may challenge current assumptions (Greene 1778). Neuroscience and the law instead believe that people who may be held legally responsible have a capacity for rational behavior and thought. It is the capability for rationality that neuroscience is challenging as with new methods for studying how people make choices, rational or not. Science is simply approaching ways to overturn precedents and expand standards with new information. The growth of science therefore, may help the legal system by allowing the idea of rationality to be challenged for each defendant; whether the defendant was acting in a rational or irrational standard of thought not necessarily behavior.

This sets a standard for minimal rationality; that people are inherently free and responsible for their actions as long as they meet the general rational requirements. Without disregarding the fact that all actions are controlled by the brain, and to contend this fact, would be paramount to allowing every excusable ‘syndrome’ as a pass on responsibility. Though as recently argued it could be said that adolescents who are still developing cognitively cannot meet the required rationality and therefore cannot be held completely responsible to the full extent for their actions, criminal or not. Arguing this issue brings about the question of wether the specific mechanisms responsible for behavior are in fact implicitly controlled by the brain or if it is something beyond the functions of the mind, which might render current brain structures (used in certain methods such as brain scans) insufficient due to the developmental changes. If brain structure is concluded as not important for actively discerning the whys of behaviors then neuroscience may have to change its context for perceiving rational behavior, and the idea of free will, as that is what the law cares about.

It seems that the goal of neuroscience in how it might affect the law is by illustrating not the possibility of creating a minimum for general rational behavior but instead mapping the mechanical nature of actions (Greene 1783), as seen with Raine’s study where certain impairments to the emotional components of the brain describe a neurobiological predisposition to antisocial behavior and a disruption to the cognitive components of morality (206). It is in this study that the processes of the mind which yield behavior are studied to show that disruptions in the neural systems which underlie the moral thinking of an individual give rise to rule breaking behavior and antisocial conditions (Raine 203).


As things stand now with the framework that the law has erected, neuroscience is providing another assessment of criminal responsibility, just as other methods have done before. It is instead the morality of society and its participants that the law must reflect upon that stands to change the current intuitions. From this new territory, neuroscience instead paves the way for legal principles and moral intuitions to be married in a workable method for examining the cases of the future. This maintains the idea that though neuroscience and neurobiology may not directly change the law, it will instead change the way people evaluate the causes for human action in terms of how the mechanism for decision making is handled.

Further Reading

Reading further into Law

Greene Article

Neuroethics and Law Blog by Kolber

Works Cited

Greene, Joshua, and Jonathan Cohen. “For the law, neuroscience changes nothing and everything.” Philosophical Transactions B: Biological Sciences 359.1451 (2004): 1775-1785. E-Journals. EBSCO. Web. 24 Nov. 2010.

Lab, Steven P. “The Court System.” Criminal Justice: the Essentials. Second ed. New York: Oxford UP, 2011. 76-108. Print.

Morse, Stephen J. “New neuroscience, old problems: legal implications of brain science.” Cerebrum: The Dana Forum On Brain Science 6.4 (2004): 81-90. MEDLINE. EBSCO. Web. 25 Nov. 2010.

Raine, Adrian, and Yaling Yang. “Neural foundations to moral reasoning and antisocial behavior.” Social Cognitive and Affective Neuroscience 1.3 (2006): 203-213. PsycINFO. EBSCO. Web. 24 Nov. 2010.

Sapolsky, Robert M. “The frontal cortex and the criminal justice system.” Law & the brain. 227-243. New York, NY US: Oxford University Press, 2004. PsycINFO. EBSCO. Web. 24 Nov. 2010.


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Good discussion. See for highlighted sections that might benefit from some attention.

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