Neurolaw is a new interdisciplinary field that brings together researchers from the social sciences, mind and brain sciences, law and philosophy to examine the social and legal implications of neuroscientific discoveries and to address a range of pressing legal and social problems. It deals, for example, with new ways of assessing individual responsibility and truthfulness (e.g. brain-based lie detection and mental health assessment techniques); predicting dangerousness and recidivism potential (e.g. in sentencing, parole and involuntary commitment decisions); developing social policies and laws informed by the most up-to-date scientific findings; and treating conditions associated with crime, violence and social problems (e.g. treatments for drug addiction and restoration of mental capacity via direct brain interventions). The field of behavioural genetics also makes important contributions to neurolaw by highlighting links between violent behaviour, criminal propensity, recidivism, and genetic makeup.
Lawyers tend to view neuroscience and behavioural genetics as mere extensions of psychology and psychiatry, and so they assume that nothing changes when courts start accepting neuroscientific and behavioural genetics evidence, testimony and solutions, in place of similar input from psychologists and psychiatrists. However, a critical strand in this field highlights the potential for neurolaw to have adverse effects on society. For example, the perceived objectivity of science and its glittering technologies may jeopardize rather than further the law’s legitimate social aims, by shifting the balance of power from policy makers and the legal profession to scientists and technologists. People’s rights may be trodden upon in the zealous pursuit of objectivity and scientific impartiality, for instance by infringing people’s right to mental privacy, by prematurely embracing untested science and technology, or by inflicting serious harm on vulnerable prison populations through forced treatments for conditions like antisocial personality disorder. Those critical of neurolaw have likened it to phrenology, psychosurgery and eugenics.
Recent studies around the world show that neuroscience and behavioural genetics have been quietly influencing the law around the world for at least a decade. Several cases have recently been unearthed in The Netherlands in which “frontal dysfunction syndrome” was accepted as an exculpatory condition in criminal trials with little explanation of how this condition was diagnosed or why it was exculpatory. In late 2009 an Italian court reduced the sentence of a convicted murderer because his genes were statistically linked with a propensity towards violence. In a landmark decision in Graham v Florida (2010), the Supreme Court of the USA ruled that neuroscientific evidence can show that some defendants should receive lighter sentences than others. And participants at a “therapeutic justice” workshop in Norway this year discussed the potential of direct brain interventions to treat anti-social behaviour instead of punishing criminals. These rulings and visions of how the law will change in the future as a consequence of advances in neuroscience and behavioural genetics represent substantive departures from current legal practice – departures which are not obviously for the better, and which herald in a range of new problems. But because of the perceived similarity of neuroscience and behavioural genetics to psychology and psychiatry, such changes have gone by largely unnoticed, unacknowledged and have often been subjected to little or no critical appraisal. Furthermore, because legal systems differ significantly from each other, the precise ways in which neurolaw is impacting on legal systems is different from country to country, and hence research in one jurisdiction is not necessarily useful for other jurisdictions.
These recent findings have spawned a highly interdisciplinary international research effort in which scientists work alongside judges, legal professionals, policy makers, social scientists and philosophers to uncover the precise extent to which neuroscience and behavioural genetics are changing our legal systems and to appraise these changes. But apart from anecdotal media reports and the work of Justice David Hodgson in the Court of Appeal of the Supreme Court of NSW, an Australian voice is almost completely absent. Yet, given the international experience, there is every reason to believe that neuroscience and behavioural genetics are quietly transforming Australian law too. To address this knowledge and policy vacuum, the proposed workshop aims to:
- inform Australian researchers as well as policy makers and law professionals about neurolaw;
- gather information on the use of neuroscience and behavioural genetics in Australian legal contexts (e.g. criminal law, tort law, medical law, employment law, etc);
- begin to identify issues specific to the Australian context that require attention from Australian researchers (e.g. admissibility of expert testimony);
- facilitate collaboration and discussion between leading Australian researchers, judges, legal practitioners, policy makers and international experts.
To bring Australian researchers and practitioners up to speed on the complex issues involved, and to give them an opportunity to develop a rigorous Australian neurolaw research agenda, the proposed workshop will be co-funded by the University of Queensland and Macquarie University. This will enable us to bring several leading experts from around the world to Australia into a setting where participants will focus on discussing current work in neurolaw and on identifying neurolaw issues relevant to the Australian context.