Law and neuroscience (sometimes ‘neurolaw’) is a relatively young field of study concerned with the intersection between different branches of law and neuroscientific findings about the strict correlation of mental functions and human behavior to brain mechanisms.
The interaction between law and neuroscience is manifold. First, law and neuroscience can communicate at both theoretical and practical levels. At a theoretical level, the increasing body of neuroscientific discoveries about the brain areas underpinning specific mental functions and behavior might well erode the adequacy of traditional “folk” assumptions underlying specific legal doctrines. Consequently, neuroscientific accounts could be used to indicate that the folk-psychological assumption underlying a given legal rule is incorrect, or suggest the need for reformed legal doctrine. At a practical level, the increasibgly accurate neuroscientific techniques (e.g., Electroncephalography –EEG- or Functional Magnetic Resonance – fMRI) might be used in a variety of legal contexts, ranging from adjudications of criminal cases to lie detection purposes.
Second, each branch of law may dialogue with neuroscience in different ways. For example, tort law might use neuroscience to help quantify subjective pain in the brain, and therefore determine just compensation for suffered injuries. Also, criminal justice might use brain imaging and other “neuromarkers” to improve the accuracy of predictions about recidivism, thereby providing valuable evidence for parole decisions.
However, the outstanding innovations that neuroscience have been bringing, and will increasingly bring to the law raise crucial legal issues. For example, according to some studies, fMRI-based lie detection will have in a few years a reliability of around 90%. How should the law accommodate the entrance of this new kind of evidentiary tool without violating the defendant’s as well as the non-party witness’s procedural rights? Also, is it legally plausible to predict recidivism by looking at the anatomy or the functioning of the brain, however reliable this can be? These kind of questions have been occupying the minds of international legal scholars, neuroscientists, and philosophers, who attempt to provide unanimous responses and to build up a fruitful dialogue between law and neuroscience, thereby contributing to the making of a fundamental part of the future of law and of the law of the future.
- O. Jones, Seven Ways Neuroscience aids Law, Neurosciences and the Human Person: New Perspectives on Human Activities Pontifical Academy of Sciences, Scripta Varia 121, Vatican City, 2013
- S. J. Morse, The Status of Neurolaw: A Plea for Current Modesty and Future Cautious Optimism, The Journal of Psychiatry & Law, vol. 39 no. 4, 2011
- M. Pardo, D. Patterson, Minds, Brains, and Law: The conceptual foundations of Law and Neuroscience, Oxford: Oxford University Press, 2013
- A. Kolber, The experiential future of the law, Emory Law Journal, Vol. 60, 2011
Neuroscience and tort law
- A.C. Pustilnik, Imaging Brains, Changing Minds: How Pain Neuroimaging Can Inform the Law, 66(5) Alabama L. Rev. 1099, 2015
- S. Camporesi – B. Bottalico, Can we finally ‘see’ pain? Brain imaging techniques and implication for the law, The Journal of Consciousness Studies, 18 (9-10), 2011
Neuroscience, Criminal Responsibility, and Punishment
- J.B. Meixner, Jr. Applications of neuroscience in criminal law: legal and methodological issues, Curr Neurol Neurosci Rep.15(2), 2015
- R.E. Redding – The brain-disordered defendant: neuroscience and legal insanity in the twenty-first century, Am Univ Law Rev. 56(1), 2006
- A.Santosuosso – B. Bottalico, Neuroscienze e genetica comportamentale nel processo penale italiano. Casi e prospettive, in Rassegna di criminologia, vol. 2, 2013.
- A. Glenn – A. Raine –Neurocriminology: Implications for the Punishment, Prediction and Prevention of Criminal Behaviour, Nature Reviews Neuroscience, 15, 2014
- H. T. Greely, Neuroscience and Criminal Justice: Not Responsibility but Treatment, Kansas Law Review, Vol. 56, 2008
- M. Farah et al., Functional MRI-based lie detection: Scientific and societal challenges, in: Nature Reviews Neuroscience, 15, 2014
- F. Coppola, Innovating witness testimony with neuroscience-based lie detection: A hypothetical normative framework, in: A. Santosuosso - O. Goodenough - M. Tomasi (eds.), The challenge of innovation in law: The impact of science and technologies on legal studies and practice, Pavia: Pavia University Press, 2015, 145
International research projects/ programs on Neurolaw
European Association for Neuroscience and Law (EANL):