Neuroethics & Law Blog

"Freedom of Thought: Absolute Protection of Mental Privacy and Mental Integrity?" by Ligthart

Sjors Ligthart (Utrecht University, Tilburg University) has published "Freedom of Thought: Absolute Protection of Mental Privacy and Mental Integrity?" on SSRN. Here is the abstract: 

In recent discussions over the RFoT, it has been emphasised that for an adequate understanding, development, and application of the right, one should consider how the RFoT relates to or complements other rights, such as the right to mental privacy and mental integrity. In this chapter, we consider the interrelationship between the RFoT and the protection of mental privacy and mental integrity. We explore how the absolute protection offered by the RFoT relates to the qualified protection of mental privacy and mental integrity offered by the right to respect for private life.

"How Neuroscience Can Improve the Sentencing of Defendants with Autism Spectrum Disorder" by Berryessa & Caliman

Colleen M. Berryessa (Rutgers, The State University of New Jersey) and Carolina R. Caliman (Rutgers, The State University of New Jersey) have published, "How Neuroscience Can Improve the Sentencing of Defendants with Autism Spectrum Disorder" on SSRN. Here is the abstract: 

Defendants with Autism Spectrum Disorder (ASD) face a myriad of difficulties at every stage of the legal process-which not only can negatively affect their experiences in court but also the fairness, efficacy, and legitimacy of their outcomes at sentencing. This chapter explores how advances in neuroscience can help positively impact the sentencing and aftercare of defendants with ASD in the United States, specifically focusing on the role of neuroscience in shaping more appropriate and prosocial legal decision-making during the sentencing proceedings of diagnosed defendants. First, the chapter will discuss how neuroscience may aid legal decision-makers to better contextualize an ASD diagnosis and its neurodiversity during sentencing proceedings. Then, it will explore how neuroscience can be used to cultivate better models of care and service innovations when developing and implementing sentencing accommodations for defendants with ASD. Finally, the chapter will describe how neuroscience is being used to increase the education, awareness, and training of legal decision-makers, including judges, attorneys, and court personnel, on ASD and its forensic relevance to sentencing and other legal processes.

"Making Victims Relevant: Republican Freedom and the Justification of Criminal Punishment" by Giannidi

Alexandra Giannidi (University of Cambridge) has published "Making Victims Relevant: Republican Freedom and the Justification of Criminal Punishment" on SSRN. Here is the abstract:

Although punishment theories have overall been slow to incorporate the move towards victims’ rights, Braithwaite & Pettit’s republican theory has been a notable exception. This paper is concerned with identifying the ways in which republican theory urges us to rethink the philosophy and practice of punishment, positioning victims at its centre, as well as with the theory’s evaluation. According to republican theory, crime compromises the victim’s ‘dominion’, that is a type of freedom as non-domination thicker than freedom as non-interference. In this context, punishment is justified as the rectification of the victims’ diminished dominion, through restorative justice practices backed by the threat of deterrence and incapacitation as a last resort. It is argued that in linking the levels of justification and practice, republican theory renders the concept of ‘dominion’ indispensable to the development of a normative framework for victim-focused punishment, while avoiding the collapse of the criminal justice system into a system of tort law. But does the turn to victims that the republican theorists envision come at a cost for offenders? On the one hand, their conception of victim-focused punishment successfully integrates a principle of parsimony, thereby reconciling the interests of victims and offenders. On the other hand, the pure consequentialist character of republican theory, reflected in the penal practices it envisions, is not easily reconcilable with the mandate for a stable protection of offenders’ rights and the principle of proportionality. It is suggested that the way forward requires at the level of theory a synthesis between republicanism and versions of backward-looking justifications of punishment, and, at the level of practice, an effort to implement responses to crime which do not set up victims and offenders for a zero-sum game.

"Rights, Reasons, and Culpability in Tort Law and Criminal Law" by Antill

Gregory Antill (Columbia Law School) has published, "Rights, Reasons, and Culpability in Tort Law and Criminal Law" on SSRN. Here is the abstract:

This article considers how a mens rea regime growing out of principles of corrective or restorative justice, taken by many theorists to underly tort law, differs from the kind of mens rea regimes which arise in a system of criminal law grounded in more traditional retributivist, expressivist, or deterrence-based principles. Recent scholarly proposals to import restorative and corrective justice approaches to criminal law are often motivated by the view that, by eschewing punitive punishments, such approaches are less harmful toward defendants. This article argues, in contrast, that a more traditional “offender-centric” criminal law focused on the degree of blameworthiness of the defendant actually affords less culpable defendants more protection than would a victim-centric criminal law, modeled after tort law and grounded in principles of corrective or restorative justice.

"Metaphysical Questions About Law: A Practice-Based Approach" by Bix

Brian Bix (University of Minnesota Law School) has published, "Metaphysical Questions About Law: A Practice-Based Approach" on SSRN. Here is the abstract: 

In this brief paper, prepared for an IVR Special Workshop on "Law and Metaphysics," I raise some questions and objections about the task of inquiring into metaphysical approaches to law.  Part I introduces the topic through a reflection on the overlapping methodological approaches of Ludwig Wittgenstein and H. L. A. Hart, Part II briefly introduces, by contrast, the recent “metaphysical turn” in jurisprudence, while also considering the complications caused by the meanings of the English word, “law”; Part III offers some reflections on whether law exists and whether a (legal) norm exists; and Part IV evaluates some benefits to a return to an alternative focus on practices, before concluding.

The paper's objective is not to declare that law does not have a “nature” or that metaphysical and ontological investigations into law, legal systems, and legal norms are making some sort of “category mistake.”  Nor is it suggesting that all such investigations be stopped.  The ultimate point of this paper instead is simply to suggest that it would be (will be) more productive to direct our energies elsewhere.  Theorizing should arise out of our practices, be justified by our practices, and, at least sometimes, offer guidance to actual practitioners.