Iranian Journal Special Article

of Iran J Neurol 2015; 14(1): 53-58

Neurolaw: A brief introduction

Received: 16 Jun 2014 Arian Petoft 1 Accepted: 27 Jul 2014

1 Department of Public Law, School of Law and Political Sciences, Allameh Tabatabai University, Tehran, Iran

Keywords data might be of significance to more accurately Brain, Human Behavior, Law, Legal Decisions, Legal understand legal issues. This is why lots of Rules, , neuroscientific evidences are increasingly reaching courts in a number of legal contexts in practice.

Neurolaw would generate a better and wiser judicial,

Abstract even legislative and executive system. Neuroscience Neurolaw, as an interdisciplinary field which links the achievements could change legal provisions, along brain to law, facilitates the pathway to better with procedural law and customs, or even alter them understanding of human behavior in order to regulate radically to a new different one. Hence, this paper it accurately through incorporating neuroscience tries to give a brief introduction to neurolaw in order achievements in legal studies. Since 1990’s, this to take effective steps toward exploring and emerging field, by study on human nervous system as expanding the scope of the law and more thorough a new dimension of legal phenomena, leads to a more understanding of legal issues in the field at hand. precise explanation for human behavior to revise legal Neurolaw: the intersection of neuroscience and law rules and decision-makings. This paper strives to Scientists with many investigations on the human bring about significantly a brief introduction to brain have learned a tremendous amount about how it neurolaw so as to take effective steps toward works, how it malfunctions, and how it can be exploring and expanding the scope of law and more repaired or altered. This emerging neuroscience, thorough understanding of legal issues in the field at namely the scientific study of the nervous system, has hand . already revolutionized medical practices. Neuroscience as a branch of biology is currently an Introduction interdisciplinary science that collaborates with other The evolution of scientific theories is reliant on the fields. 2 It also proved to be an immediate and integrity of their propositions through a powerful catalyst to understanding how the nervous comprehensive approach covering all aspects of system works and also exerts influence upon subjects; 1 law is of no exception to this principle too. neurolaw. 3 Neurolaw is an attempt to know the Unprecedentedly, legal effects and consequences are relationship between law and brain by taking into tied to neurological issues; hence an appeal to account neuroscience findings. 4 In fact, neurolaw neuroscience would be inevitable for a better explores the effects of discoveries in neuroscience on explanation for legal rules. Relationship between law legal rules. 5 and neuroscience; with brain lying in as their similar The most fundamental question among correlative factor, gives rise to neurolaw as an and lawyers is possibility of the interdisciplinary field, offering more comprehensive, relationship between law and neuroscience. accurate approach to legal phenomena; that all put Neuroscience is a natural science which based on forward a more accurate evidence for legal process, experiment and indicative statements; while law is a and a fairer system; moreover, the expansion of humanities' science according to obligations, arising both sciences is a matter of neurolaw. from the collective wisdom and abstract propositions. There are plenty of cases in which neuroscientific As more legal scientists believe, actually, law is a

Iranian Journal of Neurology © 2015 Corresponding Author: Arian Petoft Email: [email protected] Email: [email protected]

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social phenomenon which has been formed by the concerned with regulating people’s behavior. It social contract. Hence, law based on relative shapes an interdisciplinary science known as propositions, while neuroscience is on absolute ones. neurolaw. Because of huge differences among This leads our mind to real challenge that how it individuals’ brains, 12 however, there is no direct possible to propose and defend “neurolaw”? In fact, mapping of mental function to specific areas of it.13 law is humans’ creative 6 to regulate individuals’ This is a fundamental challenge in the neurolaw. conducts insecure and excellence society, Instead of Neurolaw scientists attempt to expose neuroscience natural community in which there is no law, no state, results to legal rule and system; thereby, revise legal people do whatever they want and security standards, norms, and conducts to a more accurate minimalized. 7 The ultimate goal of law is respecting to one. More precisely, the novel neuroscientific human dignity, in order to realization of humanity of approach toward legal rules and consequences brings a person and real justice; this purpose is achievable if about a more perfect and better realization of legal we have better and more accurate rules in society, In effects; hereby, mutates the rules governing them so other words, have a more fair legal system. that a farrier legal system can be followed up. Neuroscientific statements, with an open eye on neurological phenomenon, help law to have more Neurocriminology accurate rules on this sense. More clearly, neurolaw Neurocriminology is a sub-discipline of that shed light on justice way for law in its specific scientific applies neuroscience techniques to probe the causes and area. For example, when legislators want to adopt a cures of . Neurocriminology studies the makeup specific act, which related to punish offenders, or when and composition of the brain and looks for correlations judges want to decide about an accused, neuroscience between characteristics of the brain and criminal achievements give precise glasses to lawyers, to have a behavior. The very rapid developments taking place in more comprehensive view and consequently decide brain-imaging science are creating a new approach to more equitable and fair legal decisions. our concepts of responsibility and retribution on the one Drawing from neuroscience, neurolawyers try to hand, and understanding and mercy on the other. 14 understand human behavior, and will potentially Neurocriminology is documenting structural and shape future aspects of legal processes. Practically, functional brain impairments not just in antisocial, they deliberate on and nervous system violent, and psychopathic individuals, but also in spouse image by medical technology scanning such as abusers and white collar criminals. Neurocriminologists radiology, , neurology, and clinical are proposing a neurodevelopmental contribution to . 8 With these new imaging crime causation. By neurocriminology researches, it is techniques, researchers interested in the function of clarified that the brain circuits found to be impaired in the human brain were presented with an offenders parallel the brain circuits found to underlie unprecedented opportunity to examine the moral decision-making in controls. Recent researches in neurobiological correlates of human behaviors. neurocriminology, are outlining implications not just for Essentially, methods create visual brain the field of criminology, but also for concepts of legal delineation and the imaging specialist interprets it. 9 and moral responsibility, free will, and punishment. To Initially, neuroscience has been more exploited for this end, the legal implications of brain research, free will Procedural law to stand criminal and civil liability and the neural bases of antisocial or criminal behavior complaint in court. Despite this pragmatic application are of central importance. Understanding responsibility, of neuroscience, it has been applied to many legal free will, and punishment and their relationship subfields. Today, we are witnessing the development profound debate brewed in neurocriminology; if the of neuroscientific considerations in various areas of neural circuitry underling legality is compromised in law; such as Intellectual Property Law, Tort Law, offenders, is it morally and legally wrong of us to punish Consumer Law, Health Law, Employment Law, as much as we do? The relationship between Constitutional Law, and Criminal Law. 10 Even belief in free will and third-party punishment of criminal neurolaw perforate to scope of other related sciences; norm violations have been the subject of great debates such as psychiatry, sociology, political science, among philosophers, criminologists, and neuroscientists. behavioral ecology and economics that mainly Free will is the often unspoken centerpiece of the emphasize on criminology. 11 criminal law, which presumes humans are responsible Neuroscience has shed light of enquiry on how the agents, who are free to choose to comply with social brain and certain mental processes can work, and it norms or violate them. While many texts discussing follows understanding structure and function of the the forensic implications of neuroscience refer to cases brain. It gives us an insight into the mental processes where brain damage such as that caused by an that underpin human behavior as the law is primarily accident, a tumor, or surgical resection is related to

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alleged criminal behavior; this is the idea thoughts legal approaches to how revise legal system by new criminal, antisocial, sociopathic, or psychopathic neuroscience results. Moreover, “Neurolaw for Trial behavior is linked to focal lesions of the brain. 15 Lawyers,” 23 “Law and Neuroscience: Current Legal Today, by neurocriminology studies, (Legal Issues,” 24 “Neuroscience in the Courtroom,” 25 “A Primer Responsibility) is far away from its classical sense. on Criminal Law and Neuroscience,” 26 are another Neurocriminologists by considering, pondering and useful works offering aid in solving existing problems in interpreting brain-imaging, endeavor to prove legal practice. These works emphasize Procedural law Relative offenders responsibility. There are multiple and practical legal rule inspired by neurolaw. Practical neuroscientific documents that imply the truth of their neurolaw is most related to neurolitigation, applying claims. To test their hypotheses, neurocriminologists these new criminal Procedural law standards in combined functional magnetic resonance imaging courtroom by judges and lawyers. (fMRI) with a third-party punishment task, asking According to what was discussed, the main issues healthy subjects to estimate how much punishment a which have been proposed in neurolaw practical hypothetical offender deserved for a set of researches are as follows: neurolitigation challenges, prototypical offenses ranging across severity of crime neuroscientific Instruments for proving or from property destruction and theft to rape and compurgation legal responsibility, neurocriminology murder. 16 in Procedural law, standing neurolitigation, neuro A reflection on two main kinds of research in advocacy and attorney, neuroscience and judgment, neurolaw brain injury rights to appeal. Neurolaw is a relatively new and highly- Theoretical researches interdisciplinary field while the Decade of the Brain 17 On the other hand, in the theoretical approach we was first introduced to the health care and legal understand the brain, its functions in the conceptual communities. The term neurolaw, among legal value. Such an approach is of particular importance in scholars, was first coined by Taylor et al.18 More accentuating impact of brain on behavior. By this, we effectively, He raised the issue of it, with his are recognizing new rules regulating these behaviors prominent scientific paper entitled in the legal system. As neuroscientific technologies “Neuropsychologists and Neurolawyers.” 18 Taylor’s contribute to understanding of the mind, applying works during his career in academia 19 are of neuroscience discoveries in legal proceedings has also considerable significance in the research area of increased. Cognitive neuroscientists interrogate neurolaw, chiefly legal practice. Neuroscience and the complex relationship between the mind and the brain. law have interacted over a long history. Since 1990, They do it rather by using new techniques such as however, neuroscientists and neurolawyers have often fMRI and electroencephalography (EEG). And so, argued about eventuality of spreading neurolaw. neuroscientific research and technology, by inference, Also, lecturers at several scientific conferences held in drawn from these findings and increasingly the United States, United Kingdom, France and sophisticated technologies, are being applied to legal Canada address this subject frequently. 20 system rules and processes in the legal field. In this Practical researches regard, conceptual foundations of neurolaw are raised Neurolaw practical researchers are emphasizing on by the current extant philosophical questions. civil and criminal responsibility litigation and its Theoretical researchers examine the arguments practical challenges such as documenting favoring the increased use of neuroscience in law. neuroscientific data as evidence in the court room or They ransack the means for assessing its reliability in neurolitigation problems. There exists much of legal legal proceedings. Also, theoreticians endeavor to process literature in the neurolaw. “Neuroscience and integrate neuroscientific research into substantive Legal Responsibility” 21 is one of the most leading legal doctrines. Thus, these effects are covering most recent works. It explores the field of legal aspects of theoretical issues to the practical ones. responsibility by adopting a broadly compatibilist Maybe the most important books written on the basis approach. The author argued that how neuroscience, of this research method, are as follows: “Minds, psychology, and behavioral genetics should impact Brains, and Law: The Conceptual Foundations of Law legal responsibility practices? This book mainly is and Neuroscience,” 4 “Neurolaw: Brain and Spinal challenging traditional conceptions of free will and legal Cord Injuries,” 27 “Law, Mind and Brain,” 28 “Materials liability. By a comparative analysis, among other works, on Neurolaw,” 29 “Law and the Brain” 30 and “The “International Neurolaw: A Comparative Analysis” 22 Neurobiology of Criminal Behavior.” 31 compares the different legal systems and strategies that The major studies in neurolaw theoretical research they offer for dealing with neurolaw implications; field are as follows: feasibility of applying accordingly it is so important to understand different neuroscience results in legal system, concept of brain

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and law, relationship between brain and law, of law to which neuroscience may never be coherent? development and technologies of neuroscience in When we try to have access to the brain information legal system and future, brain disease and disordering via any Medical science technology, such as fMRI, are legal orders, mental illness and brain injury affection we in conflict with the right to privacy? What legal on legal responsibility, right to privacy and brain- standards could be stated for these problems? imaging, free will on third-party punishment, In conceptual sense, the issues are further neuroscience and legal rights, neuroscience and legal complicated by the fact that legal doctrine and legal freedoms, brain injury citizenship rights, individuals’ theory make use of our ordinary concepts of mind and right to security towards people with Neurological mental life. Also, it is extremely difficult to address disease, revolution of legal rules by neurolaw theories. the relationship among Mind, Brain, and Law. Some questions with which neurolawyers are Emphasizing this, neurolaw theorists by utilizing encountering conceptual methodology and philosophical view, Neurolaw attempts to relate the brain to law as well as focus on the scope and contours being employed in to moral values; so the main question in claims involving neuroscience and law. Also, they are this branch of neuroscience is how it is and will be relying less on empirical, ethical and practical used in the legal system? Scientists present a wide methods. 20 The what of the brain, mind, and law, is the variety of possible neuroscience and law main question arises in conceptual, methodological intersections. 32 As it appears, there are a number of approach; understanding them in the true sense leads distinct ways (including at a minimum in the contexts us to a mature abstract hindsight of behavior and of Buttressing, Challenging, Detecting, Sorting, conducts. Thereby, the path is paved to set of legal Intervening, Explaining, and Predicting) that rules in order to regulate behaviors in society. neuroscience can offer value to law. 33 In practical Primary challenges ahead in Neurolaw sense, evidence suggests that the number of cases Most neurolaw findings, besides philosophical, involving neuroscientific implications is rapidly psychological and other related scientific approaches, increasing. Hereupon, this requires a spacious savvy are mainly based on neuro-medical technology in both spheres of law and neuroscience. Hence, many experiments. Corollaries are achieved mostly questions remain unanswered as to what extent can according to the cognitive study of brain by brain- the brain affect human behavior that would bring imaging. In this way, neuroscientists expound about legal effect? and to have fairer and more neuroscientific data that neurolawyers totally link equitable legal system, what legal rules and precedent them to legal effects. An instance is compliant brain- should cover this aspect of conducts? How scanning to proving his /her civil or criminal neuroscience should influence criminal and civil law? responsibility against the plaintiff who claims it in the Furthermore, Neurolaw encompasses ethical tribunal. Based on hermeneutic Interpretation and questions regarding nootropics, more commonly different perceptions of behavior, the most dreadful known as mind-enhancing drugs. Nootropics referred problem here is a possible and limited commentary on to as smart drugs which are memory, neuro, cognitive neuroscientific data and neuro-images. and intelligence enhancers (supplements, Neuroscience and law are very different disciplines nutraceuticals, and functional foods that improve one in nature from laboratory to the courtroom. or more aspects of mental function, such as working Discrepancy of language is a critical issue facing memory, motivation, and attention); 34 How will these neurolaw scientists. It is pretty obvious, neurolawyers enhancers affect individuals’ legal rights in society? are being accosted with many words have slightly Will it become necessary to use an enhancing drug varying meanings, or they can be used as a different simply to remain competitive in society? Basically, do sense in both sciences. Proof of claim in law must be people have the right to experiment with substances accurate, reasonable and well-documented. So real to modify their own cognition? problem which arises is probable or almost certain With new technologies with which law has neurological inferences which neurolawyers try to confronted, the rise of modern neuroscience expands close them to evidence recognized by law; 35 that is deeply. It is necessary to be satisfied, on an acceptable main courtroom problem; this ambiguity of thought level, whether we know enough to draw legally extended to state rules or legal processes. All causes a relevant conclusions. Does neuroscience tell us situation in which the influence anything we don’t already know from common sense on the legal field will be so complicated and difficult. or previous behavioral research? Essentially, are the Furthermore, there is an overriding challenge scientific researchers and medical professionals between neuroscience and Human Rights as a branch capable of communicating their ideas in ways of Public Law. Neuroscientists strive to get access to accessible for a legal audience? Are there some areas neuroscientific data by brain-scanning (such as MRI,

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FMRI, and EEG), while human rights defenders working on brain functions and neuroscientific data to prevent them. Typically such a quarrel is occurring by have a more accurate and fairer justice system, keeping assertion of the right to privacy or maybe the right to an open staring eye upon successful neurolitigation health; just as conflicting norms between medical law over several cases in courtrooms. These all highlighted and medical test requirements are originated. the practical aspect of the subject-matter. However, These all lead us to having more concentration on there were uncertainties about neurolaw but now both neuroscience and law to find an appropriate neurolaw scientists have properly found out that solution and direction between their propositions; this neuroscientific achievements can assist law to have a will give origination to neurolaw rules and principles more reliable decision and rules, and it has shown itself which help both legal and neuroscientific in the field of Procedural law specially civil and understanding of human behavior. We primarily criminal responsibility. Of course, neurolaw, while know: “1- better legal outcomes promote better crucial in our legal studies, would help us to apply clinical outcomes for patients with neurological injury; medical knowledge and technology in the legal area to 2- successes in neurolitigation is dependent largely achieve a more equitable legal system. So to prove upon the quality and quantity of expert evidence; liability, to improve the knowledge of the judge with 3- mutual cooperation among concerned professional respect to claims, to expand the scope of law, to have a enhances the probability of successful neurolitigation; better perception of legal phenomena, even to 4- to be successful, clinical and legal professionals comprehend the brain and mind to revise the concept require litigation literacy.” 36 . of right and many more are windows opened toward our scholarship through neurolaw. It will even Conclusion associate with Islamic jurisprudence propositions such The law is not valuable per se. Instead, it is as those which are discussed in criminal punishments, instrumentally used to regulate human behavior due to responsibilities, judicial issues, etc. getting hold of justice; for this purpose we need a comprehensive understanding of legal rules from Conflict of Interests different scientific standpoints, to be recognized by The authors declare no conflict of interest in this study. legal system; one of these most effective sciences which gives hand to law mainly in practical sense, is Acknowledgments neuroscience. Neuroscience, exploring brain functions None and structures, throws light on the way to better understanding of human behavior. The blend of these two subject-matters (neuroscience and law) has paved How to cite this article: Petoft A. Neurolaw: A brief the way for neurolaw, in 1990’s. There are two main introduction. Iran J Neurol 2015; 14(1): 53-8. methods in the neurolaw: theoretical and practical. Until now, most of the neurolawyers have been

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