Neuroethics & Law Blog

PEBS Neuroethics Roundup (JHU)

Last Edition's Most Popular Article: When You Can't Sleep, How Good Is Lying In Bed With Your Eyes Closed? The Atlantic In The Popular Press Scientific Thinking in Young Children: Theoretical Advances, Empirical Research, and Policy Implications, Science Emotion Detector Enables Design of Tailor-Made Election Campaigns, Science Daily NMHMC Harvey: Check Out Einstein’s Crazy Brain, Gizmodo Video: Bionic legs could soon be controlled by thoughts alone, New Scientist CLB: Podcast Series: FMRI-based Lie Detection, Stanford Center for Law and the Biosciences Drugs Live: The Ecstasy Trial – the highs and lows, The Guardian A Call for Caution on Antipsychotic Drugs, New York Times How Food And Clothing Size Labels Affect What We Eat And What We Wear, National Public Radio The Salt Experience: I lost the power of language, The Guardian Why use Brain Cells in Art?, The Neuroethics Blog What is Creativity? Art as a Symptom of Brain Disease, Brain Blogger Best Evidence for Brain Training Falls Short, Scientific American How the brain filters bad news, The Guardian The Grand Challenge of Schizophrenia Drugs, Scientific American To sleep: perchance to learn, Nature Neuroscience News Childhood Memories Serve as a Moral Compass, Scientific American Is the Internet Really Making Us Dumber?, Spiegel Online International Why Your Brain Is Irrational about Obama and Romney, Scientific American Artificially Intelligent Game Bots Pass the Turing Test On Turing's Centenary, Science Daily From the Academic Literature: Genetic architecture supports mosaic brain evolution and independent brain–body size regulation, Nature Communications Ethical considerations in targeted paediatric neurosurgery missions, Journal of Medical Ethics Ethical Implications in the Use of Embryonic and Adult Neural Stem Cells, Stem Cells International  Prolonged myelination in human neocortical evolution, PNAS You See, the Ends Don’t Justify the Means Visual Imagery and Moral Judgment, Psychological Science Liberating Reason From the Passions Overriding Intuitionist Moral Judgments Through Emotion Reappraisal, Psychological Science Olfactory Abilities and Psychopathy: Higher Psychopathy Scores Are Associated with Poorer Odor Discrimination and Identification, Chemosensory Perception Fly neurons in culture: a model for neural development and pathology, Journal of Molecular Histology Changing behavior with epigenetics, Nature Neuroscience Humans can learn new information during sleep, Nature Neuroscience Biasing the content of hippocampal replay during sleep, Nature Neuroscience The Sensitivity of Neuroimaging Data, Neuroethics Functional connectivity between parietal and frontal brain regions and intelligence in young children: The Generation R study, Human Brain Mapping A Role for the Subthalamic Nucleus in Response Inhibition during Conflict, The Journal of Neuroscience

Subscribe to our mailing list The Program in Ethics and Brain Sciences (PEBS) is a collaborative effort of the Johns Hopkins Berman Institute of Bioethics and the  Johns Hopkins Brain Sciences Institute . The goal of PEBS is to ensure that research in brain science proceeds with an informed understanding of ethical issues, and that philosophical and empirical analyses of the advances in brain research proceed with an informed understanding of the science.

"Neurotechnologies at the Intersection of Criminal Procedure and Constitutional Law"

Recently Posted to SSRN:

"Neurotechnologies at the Intersection of Criminal Procedure and Constitutional Law" 
Neurotechnologies at the Intersection of Criminal Procedure and Constitutional Law, in The Constitution and the Future of the Criminal Law, John Parry & Song Richardson, eds. Cambridge University Press, 2013 Forthcoming

AMANDA C. PUSTILNIK, University of Maryland Francis King Carey School of Law

The rapid development of neurotechnologies poses novel constitutional issues for criminal law and criminal procedure. These technologies can identify directly from brain waves whether a person is familiar with a stimulus like a face or a weapon, can model blood flow in the brain to indicate whether a person is lying, and can even interfere with brain processes themselves via high-powered magnets to cause a person to be less likely to lie to an investigator. These technologies implicate the constitutional privilege against compelled, self-incriminating speech under the Fifth Amendment and the right to be free of unreasonable search and seizure under the Fourth Amendment of the United States Constitution. Law enforcement use of these technologies will not just require extending existing constitutional doctrine to cover new facts but will challenge these doctrines’ foundations. This short chapter discusses cognitive privacy and liberty under the Fourth and Fifth Amendments, showing how current jurisprudence under both amendments stumbles on limited and limiting distinctions between the body and the mind, the physical and the informational. Brain processes and emanations sit at the juncture of these categories. This chapter proposes a way to transcend these limitations while remaining faithful to precedent, extending these important constitutional protections into a new era of direct access to the brain/mind.

"Treatments and Services for Neurodevelopmental Disorders on Advocacy Websites: Information or Evaluation?"

Treatments and Services for Neurodevelopmental Disorders on Advocacy Websites: Information or Evaluation? by Nina C. Di Pietro, Louise Whiteley and Judy Illes has been published in the most recent issue of Neuroethics:
 
Abstract

The Internet has quickly gained popularity as a major source of health-related information, but its impact is unclear. Here, we investigate the extent to which advocacy websites for three neurodevelopmental disorders—cerebral palsy (CP), autism spectrum disorder (ASD) and fetal alcohol spectrum disorder (FASD)—inform stakeholders about treatment options, and discuss the ethical challenges inherent in providing such information online. We identified major advocacy websites for each disorder and assessed website accountability, the number, attributes, and accessibility of treatments described, and the valence of treatment information. With the exception of FASD websites, we found that advocacy websites provide a plethora of information about a wide variety of readily available products and services. Treatment information is primarily targeted at families and is overwhelmingly encouraging, regardless of the type or conventionality of treatments. Many websites acknowledge corporate sponsors. While the majority do not overtly advertise or endorse specific brands, they also do not prominently display disclaimers about the nature and intent of treatment information. Thus, while advocacy websites are organized to serve as information clearinghouses, they implicitly appear to provide endorsement of selected treatments and services. We conclude with recommendations for new partnerships between government-funded health organizations, advocacy and investigators to make more transparent the role of online information in informing treatment options and improving the evaluation of information.

Moral Agency – Who or What? (Gunkel)

Questions concerning moral standing typically begin by addressing agency. The decision to begin with this subject is not accidental, provisional, or capricious. It is dictated and prescribed by the history of moral philosophy, which has traditionally privileged agency and the figure of the moral agent in both theory and practice. As Luciano Floridi explains, moral philosophy, from the time of the ancient Greeks through the modern era and beyond, has been almost exclusively agent-oriented. "Virtue ethics, and Greek philosophy more generally," Floridi writes, "concentrates its attention on the moral nature and development of the individual agent who performs the action. It can therefore be properly described as an agent-oriented, 'subjective ethics.'" Modern developments, although shifting the focus somewhat, retain this particular agent-oriented approach. "Developed in a world profoundly different from the small, non-Christian Athens, Utilitarianism, or more generally Consequentialism, Contractualism and Deontologism are the three most well-known theories that concentrate on the moral nature and value of the actions performed by the agent." Although shifting emphasis from the "moral nature and development of the individual agent" to the "moral nature and value" of his or her actions, western philosophy has been, with few exceptions, organized and developed as an agent-oriented endeavor.

When considered from the perspective of the agent, ethics inevitably and unavoidably makes exclusive decisions about who is to be included in the community of moral subjects and what can be excluded from consideration. The choice of words here is not accidental. As Jacques Derrida points out everything turns on and is decided by the difference that separates the "who" from the "what." Moral agency has been customarily restricted to those entities who call themselves and each other "man"—those beings who already give themselves the right to be considered someone who counts as opposed to something that does not. But who counts—who, in effect, gets to be situated under the term "who"—has never been entirely settled, and the historical development of moral philosophy can be interpreted as a progressive unfolding, where what had once been excluded (i.e., women, slaves, people of color, etc.) have slowly and not without considerable struggle and resistance been granted access to the gated community of moral agents and have thereby also come to be someone who counts.

Despite this progress, which is, depending on how one looks at it, either remarkable or insufferably protracted, there remain additional exclusions, most notably non-human animals and machines. Machines in particular have been understood to be mere artifacts that are designed, produced, and employed by human agents for human specified ends. This instrumentalist and anthropocentric understanding has achieved a remarkable level of acceptance and standardization, as is evident by the fact that it has remained in place and largely unchallenged from ancient to postmodern times—from at least Plato's Phaedrus to Jean-François Lyotard's The Postmodern Condition. Beginning with (at least) the animal rights movement, however, there has been considerable pressure to reconsider the ontological assumptions and moral consequences of this legacy of human exceptionalism.

"The Sensitivity of Neuroimaging Data"

The Sensitivity of Neuroimaging Data by Jan-Hendrik Heinrichs has been published in the most recent issue of Neuroethics:
 
Abstract

When new methods of generating information about individuals leave the confined space of research application the possibility of morally dubious application arises. The current propagation of neuroscientific diagnostics leads to new possibilities of misuse and accordingly new needs for the protection of individual privacy emerge. While most current privacy discussion focuses on sensationalist applications which aim/claim to gather information about psychological traits or even the content of thoughts, the more sober but much more realistic endeavour to gather health data from research or medical imaging studies is widely neglected. I will try to answer the question if and in how far data from neuroscientific imaging technologies require special protection. Two developments form the background of the ethical discussion: the increased diagnostic power of neuroimaging techniques and the wider distribution of this technology beyond specialized medical offices and clinics. The first development is likely to broaden the scope of data, which are considered relevant for health care and related decisions. The latter is likely to widen the scope of persons who might have access to diagnostic results without at the time taking the role of a doctor towards the person diagnosed. I will argue that neuroimaging data are currently primarily medical data and that the associated standards of consent and confidentiality are worth protecting. Even nonmedical applications of neuroimaging technology inherit too much of the diagnostic power for which they were originally invented, for it to be advisable to drop the accompanying consent and confidentiality requirements.

PEBS Neuroethics Roundup (JHU)

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Last Edition's Most Popular Article: Return of the Pedophilic Brain Tumor: Acquired vs. Innate Pedophilia, The Neuroethics Blog In The Popular Press Fear Can Be Erased From the Brain, Research Shows, Science Daily A Robot With a Reassuring Touch, NY Times How to Confuse a Moral Compass, Nature News Brain Implant Improves Thinking in Monkeys, First Such Demonstration in Primates, NY Times Neurobiology of the Placebo Effect (Comic), Scientific American Surviving the Pain at the Roots, NY Times Who is redefining free will? A Response to Jerry Coyne, The Neuroethics Blog How Childhood Neglect Stunts the Brain, Wired Science The Neuroscience of Belonging, BrainBlogger Avoiding the Shadows, Mind Hacks Can MDMA help to cure depression? The Guardian First Human Whole-Brain Genetic Map Created, LA Times Science Now Militarization of Neuroscience? Neuroskeptic Naomi Wolf's Vagina Aside, What Neuroscience Really Says About Female Desire, Time Healthland Brain Scanner May Help People with Locked-In Syndrome, Scientific American When You Can't Sleep, How Good Is Lying in Bed With Your Eyes Closed? The Atlantic Improving Willpower: How to Keep Self-Control from Flagging, Time Healthland From the Academic Literature: Disruption of Reconsolidation Erases a Fear Memory Trace in the Human Amygdala, Science The Emerging Biology of Autism Spectrum Disorders, Science A Critical Period for Social Experience–Dependent Oligodendrocyte Maturation and Myelination, Science Facilitation and restoration of cognitive function in primate prefrontal cortex by a neuroprosthesis that utilizes minicolumn-specific neural firing, Journal of Neural Engineering Neuroscience: Attention is more than meets the eye, Nature Neuroscience: Idle minds, Nature Neurogenetics: What makes a human brain? Nature Reviews Neuroscience A longitudinal study on the effects of maternal smoking and secondhand smoke exposure during pregnancy on neonatal neurobehavior, Early Human Development Measuring the Subjective Value of Risky and Ambiguous Options using Experimental Economics and Functional MRI Methods, JOVE Extending Legal Rights to Social Robots, SSRN h/t Neuroethics & Law Blog Ethical Considerations in the Framing of the Cognitive Enhancement Debate, Neuroethics An Objective Measure of Stimulus-Evoked Pain, Journal of Neuroscience Neural Correlates of Reactivation and Retrieval-Induced Distortion, Journal of Neuroscience Effect of Brain Structure, Brain Function, and Brain Connectivity on Relapse in Alcohol-Dependent Patients, Archives of General Psychiatry

Subscribe to our mailing list The Program in Ethics and Brain Sciences (PEBS) is a collaborative effort of the Johns Hopkins Berman Institute of Bioethics and the  Johns Hopkins Brain Sciences Institute . The goal of PEBS is to ensure that research in brain science proceeds with an informed understanding of ethical issues, and that philosophical and empirical analyses of the advances in brain research proceed with an informed understanding of the science.

"Brain, Decision, and Debt"

Recently Posted to SSRN:

"Brain, Decision, and Debt" 
In R. Brubaker, R. M. Lawless, & C. J. Tabb (Eds.) A Debtor World: Interdisciplinary Perspectives on Debt (pp. 167–180). New York: Oxford University Press, 2012

BRIAN KNUTSON, Stanford University - Psychology
GREGORY R. SAMANEZ-LARKIN, Vanderbilt University - Department of Psychology

In this chapter, we summarize recent findings in neuroeconomics suggesting that emotion (specifically, “anticipatory affect”) can influence financial decisions, and then discuss how individual differences in anticipatory affect may promote proneness to consumer debt. Thanks to improvements in spatial and temporal resolution, functional magnetic resonance imaging (FMRI) experiments have begun to suggest that activation of a brain region associated with anticipating gains (i.e., the nucleus accumbens or NAcc) precedes an increased tendency to seek financial gains, whereas activation of another region associated with anticipating losses (i.e., the anterior insula) precedes an increased tendency to avoid financial losses. By extension, individual differences in increased gain anticipation, decreased loss anticipation, or some combination of the two (plus a third nonreflective factor) might promote proneness to debt (Knutson, Samanez-Larkin, and Kuhnen 2011). Ultimately, neuroeconomic advances may help individuals to optimize their investment strategies, as well as empower institutions to minimize consumer debt. Neuroeconomists seek to explain how brains choose. Thanks to technological advances, scientists can now “open the black box” of the brain, moving below the surface mapping between input and output to identification of mediating neural and psychological processes. Thus, neuroeconomic methods might allow scientists to bridge gaps between neural, psychological, and behavioral levels of analysis. Below, we summarize ongoing attempts to forge links from affective neural circuits to affective experience and, eventually, to decisions that can lead to debt.

"Ethical Considerations in the Framing of the Cognitive Enhancement Debate"

Ethical Considerations in the Framing of the Cognitive Enhancement Debate by Simon M. Outram has been published in the most recent issue of Neuroethics:
 
Abstract

Over the past few years the use of stimulants such as methylphenidate and modafinil among the student population has attracted considerable debate in the pages of bioethics journals. Under the rubric of cognitive enhancement, bioethicists have discussed this use of stimulants—along with future technologies of enhancement—and have launched a sometimes forceful debate of such practices. In the following paper, it is argued that even if we focus solely upon current practices, the term cognitive enhancement encompasses a wide range of ethical considerations that can usefully be addressed without the need for speculation. In taking this position it is suggested that we divide cognitive enhancement into a series of empirically-constructed frameworks—medical risks and benefits, self-medication and under-prescription, prescription drug abuse and over-medication, and finally, the intention to cognitively enhance. These are not mutually exclusive frameworks, but provide a way in which to identify the scope of the issue at hand and particular ethical and medical questions that may be relevant to enhancement. By a process of elimination it is suggested that we can indeed talk of cognitive enhancement as an observable set of practices. However, in doing so we should be aware of how academic commentaries and discussion may be seen as both capturing reality and reifying cognitive enhancement as an entity.

"Does the Neuroscience Research on Early Stress Justify Responsive Childcare? Examining Interwoven Epistemological and Ethical Challenges"

Does the Neuroscience Research on Early Stress Justify Responsive Childcare? Examining Interwoven Epistemological and Ethical Challenges by Bruce Maxwell and Eric Racine has been published in the most recent issue of Neuroethics:
 
Abstract

This paper examines interwoven ethical and epistemological issues raised by attempts to promote responsive childcare practices based on neuroscience evidence on the developmental effects of early stress. The first section presents this “neuroscience argument for responsive early childcare”. The second section introduces some evidential challenges posed by the use of evidence from developmental neuroscience as grounds for parental practice recommendations and then advances a set of observations about the limitations of the evidence typically cited. Section three highlights the ethical implications of the neuroscience argument for responsive early childcare. It argues that the neuroscience argument, first, fuels unwarranted parental anxiety by unduly raising the stakes of families’ early childcare choices and, second, threatens public confidence in developmental science’s potential to inform childcare practices and policy that enhance children’s health and well being.

"The Devil’s Advocate: Using Neuroscientific Evidence in International Criminal Trials?"

Recently Posted to SSRN:

"The Devil’s Advocate: Using Neuroscientific Evidence in International Criminal Trials?" 
Brooklyn Journal of International Law, Forthcoming
ADAM B. SHNIDERMAN, University of California, Irvine - Department of Criminology, Law and Society

This Article presents an analysis of the potential implications of neuroscientific evidence being incorporated into proceedings at the International Criminal Court.

Recent advances in neuroscience have garnered significant attention from the academic legal community, particularly with respect to scientific insight into an individual’s culpability. As the evidence has begun to trickle into the courtroom playing a role in several significant Supreme Court decisions regarding juveniles, scholars have considered the implications for incorporating this growing body of science into the legal system. However, the emerging body of scholarship has focused almost exclusively on the American legal system. Academics have remained largely silent regarding the implications of science altering notions of culpability for international criminal trials, where courts are confronted with particularly heinous crimes.

This paper considers the implications for international criminal trials of having to address a neuroscience-based understanding of culpability. The paper discusses the implications for the due process rights of the accused, the rights and needs of the victims, the didactic value of trials, and the viability of the trial model in light of evolving issues at the intersection of law, politics, and neuroscience. This paper concludes that whether the international criminal legal regime accepts or rejects this science, the legitimacy and justness in a traditional trial model is zero-sum. That is, the rights of either the accused or victim will be undermined; we must decide whose. Yet, this realization does not prove fatal for trials before the International Criminal Court. Suggestions for future research are made.

"Moral Neuroeducation from Early Life Through the Lifespan"

Moral Neuroeducation from Early Life Through the Lifespan by Darcia Narvaez has been published in the most recent issue of Neuroethics:
 
Abstract

Personality and social development begins before birth in the communication among mother, child and environment, during sensitive periods when the child’s brain and body are plastic and epigenetically co-constructed. Triune ethics theory postulates three evolved, neurobiologically-based ethics fostered by early life experience. The security ethic is self-protective. The engagement ethic is relationally attuned. The imagination ethic can abstract from the present moment and imagine alternatives. Climates and cultures can foster one or another ethic. Ancestral environments were more conducive to moral development. Individuals can adopt self-authorship of their moral character through the development of ethical expertise. Recommendations are made for research and policies that study and support optimal moral development.

"Using Brain Imaging for Lie Detection: Where Science, Law, and Policy Collide"

Recently Posted to SSRN:
 
"Using Brain Imaging for Lie Detection: Where Science, Law, and Policy Collide" 
Psychology, Public Policy, and Law, September 2012
Duquesne University School of Law Research Paper No. 2012-12
DANIEL D. LANGLEBEN, University of Pennsylvania - School of Medicine
JANE CAMPBELL MORIARTY, Duquesne University - School of Law

Progress in the use of functional magnetic resonance imaging (fMRI) of the brain to differentiate lying from truth-telling has created an expectation of a breakthrough in the search for objective methods of lie detection. In the last few years, litigants have attempted to introduce fMRI-based lie detection evidence in courts. Both the science and its possible use as courtroom evidence have spawned much scholarly discussion. This article contributes to the interdisciplinary debate by identifying the missing pieces of the scientific puzzle that need to be completed if fMRI-based lie detection is to meet the standards of either legal reliability or general acceptance. The article provides a balanced analysis of the current science and the cases in which litigants have sought to introduce fMRI-based lie detection. Identifying the key limitations of the science as expert evidence, the article explores the problems that arise from using scientific evidence before it is proven valid and reliable. We conclude that the Daubert’s “known error rate” is the key concept linking the legal and scientific standards. We suggest that properly controlled clinical trials are the most convincing means to confirm or disprove the relevance of this promising laboratory research. Given the controversial nature and potential societal impact of this technology, collaboration of several government agencies may be required to sponsor impartial and comprehensive clinical trials that will guide the development of forensic fMRI technology.

'Neuroethics, Neuroeducation, and Classroom Teaching: Where the Brain Sciences Meet Pedagogy"

Neuroethics, Neuroeducation, and Classroom Teaching: Where the Brain Sciences Meet Pedagogy by Mariale Hardiman, Luke Rinne, Emma Gregory and Julia Yarmolinskaya has been published in the most recent issue of Neuroethics:

Abstract

The popularization of neuroscientific ideas about learning—sometimes legitimate, sometimes merely commercial—poses a real challenge for classroom teachers who want to understand how children learn. Until teacher preparation programs are reconceived to incorporate relevant research from the neuro- and cognitive sciences, teachers need translation and guidance to effectively use information about the brain and cognition. Absent such guidance, teachers, schools, and school districts may waste time and money pursuing so called “brain-based” interventions that lack a firm basis in research. Meanwhile, the success of our schools will continue to be narrowly defined by achievement standards that ignore knowledge of the neural and cognitive processes of learning. To achieve the goals of neuroeducation, its proponents must address unique ethical issues that neuroeducation raises for five different groups of individuals: a) practicing teachers, b) neuroscience researchers whose work could inform education, c) publishers and the popular media, d) educational policy-makers, and e) university-level teacher educators. We suggest ways in which these ethical challenges can be met and provide a model for teacher preparation that will enable teachers themselves to translate findings from the neuro-and cognitive sciences and use legitimate research to inform how they design and deliver effective instruction.

"Extending Legal Rights to Social Robots"

Recently Posted to SSRN:

"Extending Legal Rights to Social Robots" 
We Robot Conference, University of Miami, April 2012

KATE DARLING, Massachusetts Institute of Technology (MIT) - MIT Media Laboratory

People tend to anthropomorphize robots that interact with humans on a social level. This Article explores whether projecting emotions onto objects could lead to an extension of limited legal rights to robotic companions, analogous to animal abuse laws.

A Painful Question (Gunkel)

Even though the fate of the machine, from Descartes forward was intimately coupled with that of the animal, only the animal (and only some animals, at that) has qualified for any level of ethical consideration. And this exclusivity has been asserted and justified on the grounds that the machine, unlike the animal, does not experience either pleasure or pain. Although this conclusion appears to be rather reasonable and intuitive, it fails for a number of reasons.

First, it has been practically disputed by the construction of various mechanisms that now appear to suffer or at least provide external evidence of something that looks like pain. As Derrida recognized, "Descartes already spoke, as if by chance, of a machine that simulates the living animal so well that it 'cries out that you are hurting it.'" This comment, which appears in a brief parenthetical aside in Descartes' Discourse on Method, had been deployed in the course of an argument that sought to differentiate human beings from the animal by associating the latter with mere mechanisms. But the comment can, in light of the procedures and protocols of animal ethics, be read otherwise. That is, if it were indeed possible to construct a machine that did exactly what Descartes had postulated, that is, "cry out that you are hurting it," would we not also be obligated to conclude that such a mechanism was capable of experiencing pain? This is, it is important to note, not just a theoretical point or speculative thought experiment. Engineers have, in fact, not only constructed mechanisms that synthesize believable emotional responses, like the dental-training robot Simroid "who" cries out in pain when students "hurt" it, but also systems capable of evidencing behaviors that look a lot like what we usually call pleasure and pain.

Second it can be contested on epistemological grounds insofar as suffering or the experience of pain (or pleasure) is still unable to get around or resolve the problem of other minds. How, for example, can one know that an animal or even another person actually suffers? How is it possible to access and evaluate the suffering that is experienced by another? "Modern philosophy," Matthew Calarco writes, "true to its Cartesian and scientific aspirations, is interested in the indubitable rather than the undeniable. Philosophers want proof that animals actually suffer, that animals are aware of their suffering, and they require an argument for why animal suffering should count on equal par with human suffering." But such indubitable and certain knowledge, as explained by Marian S. Dawkins, appears to be unattainable:

At first sight, 'suffering' and 'scientific' are not terms that can or should be considered together. When applied to ourselves, 'suffering' refers to the subjective experience of unpleasant emotions such as fear, pain and frustration that are private and known only to the person experiencing them. To use the term in relation to non-human animals, therefore, is to make the assumption that they too have subjective experiences that are private to them and therefore unknowable by us. 'Scientific' on the other hand, means the acquisition of knowledge through the testing of hypotheses using publicly observable events. The problem is that we know so little about human consciousness that we do not know what publicly observable events to look for in ourselves, let alone other species, to ascertain whether they are subjectively experiencing anything like our suffering. The scientific study of animal suffering would, therefore, seem to rest on an inherent contradiction: it requires the testing of the untestable.

Because suffering is understood to be a subjective and private experience, there is no way to know, with any certainty or credible empirical method, how another entity experiences unpleasant sensations such as fear, pain, or frustration. For this reason, it appears that the suffering of another (especially an animal) remains fundamentally inaccessible and unknowable. As Peter Singer readily admits, "we cannot directly experience anyone else's pain, whether that 'anyone' is our best friend or a stray dog. Pain is a state of consciousness, a 'mental event,' and as such it can never be observed."

Third, and to make matters even more complicated, we may not even know what "pain" and "the experience of pain" is in the first place. This point is something that is taken up and demonstrated by Daniel Dennett's "Why You Can't Make a Computer That Feels Pain." In this provocatively titled essay, originally published decades before the debut of even a rudimentary working prototype, Dennett imagines trying to disprove the standard argument for human (and animal) exceptionalism "by actually writing a pain program, or designing a pain-feeling robot." At the end of what turns out to be a rather protracted and detailed consideration of the problem, he concludes that we cannot, in fact, make a computer that feels pain. But the reason for drawing this conclusion does not derive from what one might expect, nor does it offer any kind of support for the advocates of moral exceptionalism. According to Dennett, the reason you cannot make a computer that feels pain is not the result of some technological limitation with the mechanism or its programming. It is a product of the fact that we remain unable to decide what pain is in the first place. The best we are able to do, as Dennett illustrates, is account for the various "causes and effects of pain," but "pain itself does not appear." What is demonstrated, therefore, is not that some workable concept of pain cannot come to be instantiated in the mechanism of a computer or a robot, either now or in the foreseeable future, but that the very concept of pain that would be instantiated is already arbitrary, inconclusive, and indeterminate. "There can," Dennett writes at the end of the essay, "be no true theory of pain, and so no computer or robot could instantiate the true theory of pain, which it would have to do to feel real pain." Although Jeremy Bentham's question "Can they suffer?" may have radically reoriented the direction of moral philosophy, the fact remains that "pain" and "suffering" are just as nebulous and difficult to define and locate as the concepts they were intended to replace.

Finally, all this talk about the possibility of engineering pain or suffering in a machine entails its own particular moral dilemma. "If (ro)bots might one day be capable of experiencing pain and other affective states," Wendell Wallach and Colin Allen write, "a question that arises is whether it will be moral to build such systems—not because of how they might harm humans, but because of the pain these artificial systems will themselves experience. In other words, can the building of a (ro)bot with a somatic architecture capable of feeling intense pain be morally justified and should it be prohibited?" If it were in fact possible to construct a machine that "feels pain" (however defined and instantiated) in order to demonstrate the limits of moral subjectivity, then doing so might be ethically suspect insofar as in constructing such a mechanism we do not do everything in our power to minimize its suffering. Consequently, moral philosophers and robotics engineers find themselves in a curious and not entirely comfortable situation. One needs to be able to construct such a mechanism in order to demonstrate the moral standing of machines; but doing so would be, on that account, already to engage in an act that could potentially be considered immoral. Or to put it another way, the demonstration of machine moral subjectivity might itself be something that is quite painful for others.