Neuroethics & Law Blog

"On Duty" by Waldron

Jeremy Waldron (New York University School of Law) has published "On Duty" on SSRN. Here is the abstract:

Duties are normally understood prescriptively, in terms of the particular action a given duty requires. This essay, however, considers an alternative understanding. Duties may be understood by reference to situations for which the duty-bearer takes responsibility. (Not responsibility in a causal sense, but responsibility in a forward-looking sense--like being "on duty"). The paper explores the difference between these two understandings of duty and the attractions of the situational version. One attractive feature of the situational understanding is that it is open-ended (rather than settled and determinate) in the sense it conveys of what might be expected of the duty-bearer.

"Can More Police Induce More Crime?" by De la Vega et al.

Casilda Lasso De la Vega (University of the Basque Country - Department of Applied Economics IV), Oscar Volij (Ben-Gurion University of the Negev - Department of Economics), and Federico Weinschelbaum (Universidad Torcuato Di Tella - Departamento de Economia, CONICET) have published "Can More Police Induce More Crime?"on SSRN. Here is the abstract:

We show that it is possible to incorporate any appropriation technology available to thieves into a Walrasian economy so that in equilibrium more police induces more crime. This perverse effect could arise even if the level of police protection is the socially optimal one.

"Toward an Optimal Decarceration Strategy" by Grunwald

Ben Grunwald (Duke University School of Law) has published "Toward an Optimal Decarceration Strategy" on SSRN. Here is the abstract:

With mounting support for dramatic criminal justice reform, the question is no longer whether we should decarcerate American prisons but how. This question is far more complicated than it might seem. We could cut the prison population in half, for example, by drastically shortening sentences. Or we could reduce prison admissions. Or we could do both. And we could do either or both for countless combinations of criminal offenses. Moreover, even when they reach the same numeric target, these strategies are not equivalent. They would have vastly different consequences for both prisoners and the public and widely varying timeframes to take effect. To pick among them, we need richer metrics and more precise empirical estimates to evaluate their consequences.

This Article begins by proposing metrics to evaluate the relative merits of competing decarceration strategies. The public debate has focused almost exclusively on how we might decarcerate while minimizing any increases in crime and has, therefore, underappreciated the costs of prison itself. We should consider at least three more metrics: the social harm of incarceration, racial disparity, and timing. Next, the Article develops an empirical methodology to identify the range of strategies that would reduce the national prison population by 25, 50, and 75%. Finally, it identifies the best performing strategies against each metric.

The results have several broader takeaways. First, the optimal approach to decarceration depends heavily on which metrics we value most. The results thus quantify a stark set of policy choices behind a seemingly simple objective. Second, the results confirm that, to dramatically shrink prisons, it is critical to decarcerate a substantial number of people convicted of violent offenses—a fact that may surprise the majority of Americans who believe people convicted of drug offenses occupy half of prison beds. Finally, the results show that race-neutral decarceration strategies are likely to exacerbate rather than mitigate racial disparities. Armed with the conceptual tools and methodologies developed in this Article, we can make more informed decisions about how to best scale down prisons, given our priorities and constraints.

"Bloody Lucre: Carceral Labor and Prison Profit" by Appleman

Laura Appleman (Willamette University College of Law) has published "Bloody Lucre: Carceral Labor and Prison Profit" on SSRN. Here is the abstract:

The pursuit of profit is inextricably intertwined with America’s system of carceral labor and criminal punishment. Along with the institution of slavery, the harnessing of involuntary carceral labor yielded enormous proceeds through transformation of human toil into financial gain. Profit incentives have exerted a profound influence on the shape of American carceral labor. From 16th-century British convict transportation to 21st-century private corrections companies, profitable returns from involuntary carceral servitude have been an important feature of criminal punishment.

This Article traces the coruscating power of the private profit motive within the criminal justice system, one of the first to chart the ways this focus on revenues has shaped the forced toil of those under correctional control. By thoroughly evaluating our carceral history, and dissecting the financial currents that have shaped the many forms of involuntary inmate servitude, we will be better able to disentangle how money has influenced and warped our system into one of mass incarceration. Moreover, a full understanding of our carceral past could help us begin to rechart the course of modern criminal justice, eliminating this kind of involuntary servitude in our system.

"Insanity Step Zero: A Modern Application of M’Naghten’s Question Four Test" by Mills

Michael Mills (Cornell University, Law School) has published "Insanity Step Zero: A Modern Application of M’Naghten’s Question Four Test" on SSRN.  Here is the abstract:

Defendants suffering from delusion currently are subject to inequitable treatment in our criminal justice system. They can genuinely believe, due to a delusion, that a person right in front of them has a gun and is about to kill them. Acting in what they believe is self-defense, they can draw a gun and kill their would-be assailant. Many in their same situation, facing what they believe to be an imminent threat against their life with no ability to escape, would do the exact same thing. In fact, the law in all fifty states would allow a defendant actually facing such a threat to raise a self-defense claim. However, under many states’ laws, the delusional defendant still will be found guilty of murder. Mistake of fact doctrines generally require mistakes to be reasonable, so the defendant will not be entitled to a self-defense claim because delusions are inherently unreasonable. Yet, only seven states have insanity defenses that explicitly account for delusions. Thus, the jury may still find them guilty under that jurisdiction’s insanity test. This creates a paradox: defendants are too insane to qualify for the mistake of fact doctrine, yet too sane to escape punishment under the insanity defense. This paradox has become increasingly prevalent in recent years, as many jurisdictions seek to abolish or modify their insanity tests—often leaving defendants suffering from delusions behind in the process.

This Note proposes a novel test to fix this paradox: the step zero test. It is built off of the fourth answer the Justices gave in the famous M’Naghten Case. While that answer has largely fallen to historical obscurity, my proposed test revives that answer and repurposes it to solve this modern problem. The test operates as follows: the jury is to accept the facts as the delusional defendant believed them to exist. Accepting those facts as true, if the defendant would otherwise have an affirmative defense, the jury is required to acquit by reason of insanity. This instruction would be given before any other insanity instruction. After the jury performs this test, they would proceed to the jurisdiction’s usual insanity test. Requiring the jury to go through this preliminary step to any insanity defense ensure that defendants suffering from delusions are, at a bare minimum, treated equally before the law as everybody else.

"Teaching Law and Artificial Intelligence" by Johnson & Shen

Brendan Johnson (University of Minnesota Law School) and Francis X. Shen (University of Minnesota Law School, Harvard University - Department of Psychiatry) have published "Teaching Law and Artificial Intelligence" on SSRN. Here is the abstract:

In this Essay we present the first detailed analysis of how U.S. law schools are beginning to offer more courses in Law and Artificial Intelligence. Based on a review of 197 law school course catalogs available online, we find that 26% of law schools offer at least one course with significant coverage of Law & AI, and that 13% of schools offer more than one such course. Analysis of the data suggests that Law & AI courses are more likely to be offered at higher ranked law schools.

Based on this analysis, and in light of the growing importance of AI in legal domains, we offer four recommendations. First, for those schools that do not currently offer a course, we advocate for creation of at least one introductory course that directly engages AI issues. For those schools that already have an introductory course, we suggest that AI issues be more broadly engaged throughout the curriculum. Third, to facilitate these two goals, we argue that law schools must continue to improve interdisciplinary partnerships with other university departments and local institutions that can provide expertise in AI and machine learning. Finally, to catalyze law school investment in this area, we suggest that U.S. News and World Report create a new ranking category: Best Law & AI Programs.

The Essay is organized in five parts. After a brief introduction in Part I, we proceed in Part II to introduce our new data-base of current U.S. law school course offerings in Law & AI. We describe the methods we used to search and code courses, and make available for readers a google sheet database providing key details on each course such as instructor, credit hours, and course description. We identify 115 courses for inclusion in the database. Part III discusses the findings gleaned from the database and offers our core recommendations. In Part IV, we present a User’s Guide to Teaching Law & AI, with insights from both professor and student perspectives on what strategies can be used to develop an effective Law & AI course. Part V concludes.

"Predict and Suspect: The Emergence of Artificial Legal Meaning" by Maggen

Daniel Maggen (Yale University, Law School0 has published "Predict and Suspect: The Emergence of Artificial Legal Meaning" on SSRN. Here is the abstract:

Recent theoretical writings on the possibility that algorithms would someday be able to create law have delayed algorithmic law-making, and the need to decide on its legitimacy, to some future time in which algorithms would be able to replace human lawmakers. This Article argues that such discussions risk essentializing an anthropomorphic image of the algorithmic lawmaker as a unified decision-maker and divert attention away from algorithmic systems that are already performing functions that together have a profound effect on legal implementation, interpretation, and development. Adding to the rich scholarship of the distortive effects of algorithmic systems, the Article suggests that state-of-the-art algorithms capable of limited legal analysis can have the effect of preventing legal development. Such algorithm-induced ossification, the Article argues, raises questions of legitimacy that are no less consequential than those raised by some futuristic algorithms that can actively create norms.

To demonstrate this point, the Article puts forward a hypothetical example of algorithms performing limited legal analysis to assist healthcare professionals in reporting suspected child maltreatment. Already in use are systems performing risk analysis to aid child protective services in screening maltreatment reports. Drawing on the example of algorithms increasingly used today in social media content moderation, the Article suggests that similar systems could be used for flagging cases that show signs of suspected abuse. Such assistive systems, the Article argues, will likely cement the prevailing legal meaning of maltreatment. As mandated reporters increasingly rely on such systems, the result would be the absence of legal evolution, preventing changes to contentious elements in the legal definition of reportable suspicion, including the scope of acceptable physical disciplining. Together with the familiar effect of existing systems, the effect of this hypothetical system could have a profound effect on the path of the law on child maltreatment, equivalent in its significance to the effect autonomous algorithmic adjudication would have.

"Neurorights: the Chilean constitutional change" by McCay

Allan McCay (Sydney Law School) has published "Neurorights: the Chilean constitutional change" on Curmudgeon Corner. Here is the article:

Towards the end of 2021, Chile became the first nation in the world to have a constitution in force that explicitly addresses the challenges of emerging neurotechnologies. Whilst this legislative response to technologies that draw on knowledge pertaining to neuroscience and artificial intelligence received some international media attention, it deserved more. The modification of the constitution might even be thought of as an important historic event given that emerging neurotechnologies have the potential to gather data from our brains, or even to manipulate them, thereby influencing what we think or do. Chile is the first country in the world to directly address the human rights challenges.

The Chilean constitution as it now stands requires that technological development respect people’s physical and mental integrity and it states that the law must especially protect brain activity and information related to it.

This development is a response to growing calls to respect “neurorights”. Proponents of neurorights worry that neurotechnologies, such as those being developed by Elon Musk’s company Neuralink, have the capacity to interfere with our thought processes and behaviour, perhaps thereby infringing what they argue is our right to mental integrity, and revealing information about mental states in a way that is concerning, and thus an infringement of our right to mental privacy.

They further worry that such neurorights are not adequately protected by existing human rights law and call for law reform. Columbia University professor of neuroscience, Rafael Yuste envisages important benefits flowing from neurotechnology, but has also been a significant figure in such calling for the recognition of neurorights. He and other advocates are organising, as is demonstrated by formation of the New York-based NeuroRights Foundation.

With regard to addressing the worries of such advocates, Chile is a world leader. But is this legal action premature? Has Chile legislated to protect rights that are under threat only in science fiction?

Neurotechnologies that influence people’s thought process have been a staple of science fiction for quite some time. Whether we think of the 1970s film Terminal Man, the Japanese manga series The Ghost in the Shell, or more recently numerous episodes of the Netflix series Black Mirror, science fiction has long been preoccupied with technological mindreading, manipulation of behaviour and the potential of humans to control devices directly with their minds.

But now technology exists that enables people with disabilities to control cursors or other devices by thought or even to control a drone. Technology also exists which enables the presentation of images seen by a person to be displayed on a computer screen. This can happen by way of a device that reads people’s brain activity and converts this data into images representing what is seen or even imagined.

There is a significant interest in all of this from a variety of organisations. Agencies such the Defence Advanced Research Projects Agency (a body which aims to preserve the USA’s technological advantage in the military context) has quite a history of devoting resources to neurotechnology and has various current projects. Medical companies such as Synchron are also working on various therapeutic applications. Elon Musk’s company Neuralink has both medical and non-medical uses of neurotechnology in their sights. In fact, Mr Musk envisages that one day one will be able to summons one’s Tesla vehicle by way of mental action rather than going to the trouble of walking towards it.

Perhaps, the thing that has really changed is that while neurotechnology has been around for some time, until fairly recently it has largely been pursued by universities or military agencies such as DARPA. But now there is a race on to commercialise neurotechnology and use it in all sorts of contexts including the workplace and for computer gaming. Companies such as Facebook’s CTRL Labs, Emotiv, Kernel and a host of others join Neuralink and Synchron are in a race to make money from this technology.

But is all this activity a good or bad thing? Like so many technological advances, it is something of a double-edged sword. Air travel brought us the opportunity to visit far flung places, but also to spread disease and destroy the environment, and neurotechnology is likely to be a mixed blessing and to come with worrying downsides.

Given that advances in neurotechnology may allow people with forms of paralysis to gain control over devices and decrease their reliance on others, the technology is nothing short of wonderful. To aim to give autonomy to people who lack it is a worthy goal by any standard and must be pursued. If neurotechnology also has the potential to cure epilepsy, depression and dementia, then it is hard to dismiss it as something that is not worthwhile.

But what about the dark side of this technology? Here, we might consider hypothetical examples from an area that I am interested in, criminal justice. There is a range of criminal justice systems around the world, some more respectful of human rights than others. What if some systems started to decrease their reliance on techniques that have been used in the past to gain information from suspects, such as interviewing them in favour of more direct brain reading? Perhaps, by showing someone a crime scene image whilst the suspect was wearing a brain-reading device, it would be possible to see if the device picked up any neural activity associated with the suspect having seen that scene before.

What if upon conviction an impulsive and aggressive offender was fitted with a brain implant that, by way of algorithmic means, monitored their brain for neural activity associated with an angry outburst and electrically stimulated the brain to pacify them if they got angry? Maybe this is not such a great step, as some criminal justice systems already electronically monitor offenders’ geographical position.

A global group of researchers including myself and Rafael Yuste have considered the possibility of brain-monitoring devices that from time to time intervene on the brain of mentally ill people to prevent them from committing crimes. Should the courts order brain monitoring of this kind? Is it ethically acceptable that an algorithm ‘decides’ when electrical stimulation is needed to stop a mentally ill person from committing a crime?

Moving away from criminal justice, perhaps employers might wish to monitor the brains of their employees to see if they are attentive enough to their work. Perhap,s one’s workplace brain device might be hacked and someone else might engage in brain monitoring or even manipulation.

There is a lot to think about here and, given the commercial activity that is under way, perhaps the question is not whether the Chileans have acted too soon, but whether other countries are considering questions relating to neurorights with enough urgency.

Senator Girardi, a key figure in the recent Chilean reform, is right to point out that there is another technology that, with the benefit of hindsight, we were a bit slow to respond to and that is social media. There now seem to be some tricky social issues that have emerged from that technology, and it is not entirely clear what to do about them. Neurotechnological developments might have more profound implications for society and perhaps we should not wait to act until the changes are entrenched.

It has always been possible to guess what is in others’ minds and to use that to influence them, but one can only speculate on what life might be like as corporations, governments and perhaps other individuals gain increasingly precise and reliable information about our mental states, and increasing capacity to manipulate what we think and how we behave. The debate about this is already fairly mainstream in respect to AI, but the related field of neurotechnology is still at the margins of the public forum, and in most countries absent from the political agenda.

Of course, we do not really know what the impact of neurotechnology will be or how the Chilean constitutional change will affect it. We do not know if the Chilean approach is the right one; but one thing is clear, the Chileans have recognised that brain reading and brain manipulation are no longer the exclusive province of science fiction. Other countries should do the same.

The International Bioethics Committee’s Report on Neurotechnologies and the Problems with Neurorights by Bublitz

Dr. Jan Christoph Bublitz's (Universität Hamburg) has published a blog post regarding the UNESCO report on neuroethics. Here is the blog post:

The International Bioethics Committee (IBC) of UNESCO just published a Report on the Ethical Issues of Neurotechnology that merits the attention of the neuroethics and neurolaw communities, not least because it may serve as the basis for a subsequent UNESCO instrument. This blog post provides a brief overview of the report and a critical comment on one aspect, namely the promotion of so called neurorights. Instead of adopting them, a future UNESCO instrument should reaffirm and strengthen existing human rights.

Established in 1993 to promote reflection on ethical and legal issues in the life sciences, the IBC is composed of 36 independent scientific experts, renowned scholars from various fields and countries who act in their personal capacity and are appointed for a fixed term. The IBC is the driving force behind the UNESCO Bioethics Program and is complemented by the Intergovernmental Bioethics Committee (IGBC) which is composed of representatives of member states. Although recommendations by UNESCO or its committees are not binding, they are relevant soft-law material that is, and should be, taken into consideration by member states, policy makers, regulators, ethics committees and review boards. Non-binding soft law can be effective in a variety of ways at many levels.

The IBC report on neurotechnology is neither a work of philosophy, nor a contribution to an academic debate; most issues and proposed solutions will not surprise people working in neuroethics. However, they are not the target audience of such documents. They are primarily directed at UNESCO and its member states, and secondarily at other stakeholders; this report directly addresses industry, media, the public, and researchers.

The report is well-informed about technological developments and ethical discussions. In substance, it commendably addresses many worries of neurotechnologies infringing upon human rights in sometimes novel and intense ways by either intervening into brains or reading out brain activity (or by methods combining both). These unparalleled powers over the human brain and the human person might be exploited by governments and private actors for various illegitimate purposes. More concretely, the report discusses topics diverse as threats to personal identity through deep brain stimulation, blending of Artificial Intelligence with neurotech, care for vulnerable groups and developing brains of children, enhancement, public engagement, public-private partnerships and open science. While documents of this kind typically remain at a general level, the report makes a few concrete normative recommendations. For instance, it suggests treating brain data as a type of sensitive data in data-protection regulations such as the EU General Data Protection Regulation (at 103). It further holds that brain data “must never been used for surveillance or profiling without informed consent” or for “potential discrimination based on cognitive or other mental features” (at 188b).

In addition to usual suspects of medical ethics, the report also addresses a few topics not yet in the focus of neuroethics. For instance, it formulates a right “not to be socially bombarded by neurotechnology in order to promote a supposed human improvement” (at 191f). It also identifies a right “to refuse the use of neurotechnologies and not be excluded or devalued for doing so” (at 191d). Alternatives to neurotechnologies with the same effectiveness should be sought (at 191e). These are interesting suggestions about a life free form neurotechnologies, and surely merits neuroethical discussion. Moreover, it might also be worthwhile to examine which aspects are left out of the report; one area that seems underexplored is the use of neurotechnologies for forensic and law enforcement purposes (lie detection, Guilty Knowledge Test); another is the voluntary use of older neurotechnologies such as mind-altering pharmaceuticals (e.g., with respect to the “psychedelic renaissance”).

Importantly, the report envisions that UNESCO draws up an additional soft law instrument, a “UNESCO Convention on the Human Brain and Human Rights” (at 167). Such a convention would notably be a binding international treaty upon ratification (elsewhere, the report speaks about a non-binding and supposedly politically more realistic declaration). It is now up to the IGBC to review the recommendations and up to UNESCO to initiate further actions.

The impetus to create a novel international document is to be appreciated. But before work on it commences, one should pause and consider what this instrument might be about. For instance, one may wonder how it goes beyond the UNESCO Declaration on Bioethics and Human Rights (2005), which already addresses a range of concerns from human dignity to justice. One may also wonder whether it should also more aspirational goals such as combatting climate change or ending the (alleged) discrimination of “neurodiverse” populations? Issues as the latter are intriguing but would require more profound normative analysis. Also, xould transcultural perspective on the human brain and human existence provide a less reductionistic and more holistic document focusing on human subjectivity, interpersonal relations and socio-economic effects on the brain? And how does the new instrument relate to existing and established human rights? It this latter point that I wish to comment on.

Criticism of neurorights

In the beginning, the report asks whether questions raised by neuroscience “are so important and so novel that we need a new set of neuro-specific human rights … or whether those rights challenged by neurotechnology are already enshrined in existing human rights, but need more explicit protection through precisely worded guarantees” (at 17). This question about the need for novel human rights has recently gained attention of international organizations and scholars. The report does not provide an unequivocal answer. It “considers that neurorights embrace certain human rights that are already recognized” (at 185).  At the same time, it recommends that UNESCO not only explores and adapts existing rights, but also “the proclamation of new human rights” along with comprehensive gloval efforts to clarify their substance (at 186). It further “encourages Member States to guarantee neurorights. Granting neurorights a positive status will empower citizens to claim respect for these rights” (at 190). These remarks seem to imply that neurorights are not guaranteed at the moment, that their content exceeds existing rights and that additional legal guarantees are required. This stance is exemplified by the report’s discussion of the suggested novel right to cognitive liberty, which is described as not identical to the existing right to freedom of thought (IV.4).

While the call for adapting existing rights to novel challenges is laudable, the call for novel rights is unfortunate and the suggested class of neurorights misleading. The IGBC and drafters of a future instruments should not pursue them and strengthen existing rights instead; properly constructed, they suffice to address the dangers of neurotechnologies. (To not do injustice to the important work of the IBC, it should be emphasized that the report also recommends strengthening existing rights and that its endorsement of neurorights is ambivalent; the final report is less outspoken than a previous draft report or media statements on UNESCO’s website. The following is thus not a criticism of the report, only of the recommendation of neurorights that it puts to discussion).

The term “neurorights” is unfamiliar in international law. The IBC report is the first document by an international organization that refers to it, this makes this comment necessary. A recent report authored by Marcello Ienca and commissioned by the Bioethics Committee of the Council of Europe provides the best overview of the concept so far. It denotes a loosely defined set of rights ranging from the preservation of personal identity over mental privacy and data protection to freedom from biases. Their adoption is most visibly advocated by a NeuroRights Initiative that lobbies for a list of five specific rights in several countries and before international organizations. The report of the IBC is influenced by their suggestions at several places. These activist interventions are without doubt important contributions from civil society to the development of human rights law and express valid concerns of scientists about societal concerns arising from their field. The problem is just that these suggestions are not good legal advice and should not be mistaken for such by international organizations, policy makers, or regulators. Here are five problems with neurorights:

The first problem is that the class as well as the individual rights are at best vaguely defined and that the need for their recognition is anything but obvious. After reading the reports by the IBC and others, one still wonders whether there is any case outside the domain of science fiction that established first generation rights fail to address. To name just the most important rights and principles that protect persons from neurotechnological interventions into their brains or unwanted measurements of their brain activity: the rights to physical and mental integrity (sometimes part of the right to the security of the person); the right to freedom of thought and conscience; the right to privacy (which implies mental privacy); the value of human dignity and the principle of autonomy. These are well established rights in international and regional instruments. The report notes their existence and calls for effective guarantees of them. Their shortcomings, however, have not been shown but seems to be assumed.  

Moreover, even if current law fails to adequately address challenges of neurotechnologies (which it likely does), the preferable approach is to further develop and reinterpret existing rights rather than conjuring up novel ones. For instance, the mentioned right to freedom of thought has not yet found firm contours; it is not addressed by more than a handful of cases on the international level. It suggests itself to examine and develop it further to see whether it can accommodate issues which the idea of cognitive liberty encompasses.

The second problem with the call for novel neurorights is that implies that existing rights are unfit to adequately address neurotechnological challenges, supposedly because their scopes are too narrow or their strength too limited. As such assessments may diminish and weaken existing rights, they should be made with caution, especially if forwarded by an international standard-setting organization with soft law powers. Diminutive interpretations by such actors can have shaping effects weakening these rights. This should not be done without need and substantial argument. Rather than declaring them as insufficient, impotent, or inapplicable, existing rights should be strengthened and their importance reaffirmed.

A third topic is well-familiar in human rights law: Rights inflationism, the creation of more and more human rights, may lead to the devaluing of existing rights. Roughly, the fewer human rights are recognized, the more significant they are, and the higher the chances that legal systems and institutions effectively guarantee, monitor, and enforce them. The rule to not unnecessarily multiply entities also applies to human rights.  

Fourth, the class of neurorights might not be a suitable solution to fill existing gaps. Bound to specific technologies, they pose problems of consistency. There are neither car-rights nor internet-rights because defining rights at this level of generality is not consistent with the abstract and general nature of human rights. The class of neurorights inserts an alien element into a somewhat coherent system; neurorights are a category mistake.

A final group of concerns is of practical nature. Recommending new entities or a class of rights will direct resources of international organizations, institutions, member states, legal scholars, and policy makers to the examination of these rights. It shifts attention from the interpretation and application of existing rights to the creation of novel ones. This is a misallocation of resources. Future work of UNESCO would be most effective if it promotes and shapes existing rights, e.g., by clarifying their scope and philosophical underpinnings, by making them operationalizable and rendering them more concrete with respect to specific threats, or by developing good policy proposals that reasonably balance human rights with public and private interests.  Also, the term “neurorights” has been visibly taken up by a group of scholars promoting their own specific conception. Their proposal faces severe objections (three examples: 1,2,3). Rather than relying on a specific and contested proposal, work on a future instrument should be open to a wide variety of voices and diverse inputs. Finally, with respect to legitimacy, adopting novel human rights is a different ballgame than further developing existing rights by means of evolutive interpretation in light of changing socio-technological circumstances. A binding convention including novel rights is politically not feasible, and probably, a declaration is neither.

For these reasons, the concept of neurorights should be dropped. Again, this does not entail that human rights, as currently understood, adequately address neurotechnological challenges. But they should be further developed rather than diminished, and future UNESCO work should be directed towards this end. The worries raised by the IBC are valid, its recommendations deserve appreciation by all stakeholders. Its efforts to place the concerns which ethicists and legal scholars pointed to for many years on the agenda of a primary international human rights institutions are laudable and continue the long-lasting contribution of UNESCO to the development of human rights. A future international document provides a welcome opportunity for the neuroethics and neurolaw communities to advance debates about the scope and limits of existing human rights, to develop innovative and more imaginative ideas and shed light on topics that may have been neglected so far.

Further reading

For a deeper critique of neurorights: Bublitz, Jan Christoph. Novel Neurorights: From Nonsense to Substance. Neuroethics 2022 (15:1).

More generally about the need for novel human rights because of neuroscience: Ienca, Marcello & Andorno, Roberto. Towards new human rights in the age of neuroscience and neurotechnology. Life Sciences, Society and Policy 13:5, (2017)

Cf. the papers in the topical collection Neurorights and Mental Freedom: Emerging Challenges to Debates on Human Dignity and Neurotechnologies, ed. by Eric García-López; José M. Muñoz and Roberto Andorno.