Will neuroscience revolutionise the law?
13 December 2011
You don’t need to be a brain scientist to see that lawyers would benefit from a more sophisticated understanding of the human brain. Neuroscientists seek to determine how brain function affects human behaviour, and the system of law regulates how those humans interact with each other. According to a new Royal Society report, lawyers and neuroscientists should work together more.
The report, Neuroscience and the law, argues that neuroscience has a lot to offer the law, for example:
might neuroscience fundamentally change concepts of legal responsibility? Or could aspects of a convicted person’s brain help to determine whether they are at an increased risk of reoffending? Will it ever be possible to use brain scans to ‘read minds’, for instance with the aim of determining whether they are telling the truth, or whether their memories are false?
One aspect of the report which has been widely reported is the questions it raises about the age of criminal responsibility, which is currently age 10 in the UK. This is important to get right; children should not be blamed for actions if they are not intellectually capable of understanding or controlling them. Some argue that the age of responsibility, which is low compared to many other jurisdictions including Scotland. should be raised. The report offers a fascinating insight into the issue:
Neuroscience is providing new insights into brain development, revealing that changes in important neural circuits underpinning behaviour continue until at least 20 years of age. The curves for brain development are associated with comparable changes in mental functioning (such as IQ, but also suggestibility, impulsivity, memory or decision- making), and are quite different in different regions of the brain. The prefrontal cortex (which is especially important in relation to judgement, decision-making and impulse control) is the slowest to mature27. By contrast, the amygdala, an area of the brain responsible for reward and emotional processing, develops during early adolescence.
The report suggest that a more individually tailored approach may be necessary:
There is huge individual variability in the timing and patterning of brain development. This could be taken to imply that decisions about responsibility should be made on an individual basis at this stage of development.
All the talk of mind-reading and predetermination of criminal behaviour sounds like science fiction, but brain science is now sufficiently advanced – and advancing rapidly – that the legal system must do more to incorporate the lessons it offers.
And, in many ways, this is already happening. The report refers to 722 US criminal cases in which neurological or behavioral genetics evidence has been introduced in criminal cases on behalf of a criminal defendants in the past 7 years. This includes 449 murder case; things have clearly moved on a bit since the “Twinkie defence“.
So whether lawyers like it or not, neuro-scientific evidence is being increasingly used in courts, and it would therefore be sensible to learn more about it, and quickly. This is more likely to lead to evolution not revolution, with lawyers and judges understandably suspicious of science which seeks to explain away human behaviour, and reduce the role of human agency and free will, principles upon which the system of law is founded.
But the report does not recommend large-scale changes to the legal system, but rather that formal and regular interactions are set up between neuroscientists and lawyers through:
- an international forum,
- a better system for identifying quality expertise,
- the incorporation of an introduction to neuroscience and behavioural genetics into law degrees,
- training being made available for lawyers and probation officers
- further research in various key areas.
This all sounds very sensible. Neuroscience may not revolutionise the law, which is likely to retain the basic understanding of human agency and free will that has existed for centuries. But it may help us refine that understanding. If that means revising the age of criminal responsibility or improving the way the criminal justice system does risk assessment, then it may just make our legal system a bit cleverer.
Joanna Glynn QC of 1 Crown Office Row was a reviewer for this report but is not the writer of this post.
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Read more:
- Today Programme item, 13 December 2011
- Law and Lawyers > Criminal liability of Children and their trials
- Leveson goes live
- A blueprint for a simpler, fairer justice system
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I sincerely hope that it may provoke a serious debate on raising the age of criminal responsibility. It is ludicrously low at 10 and it is downright shaming that we are in such company as Nigeria, Kenya, Sudan.
The idea that children as young as ten can feel the weight of full adult criminal proceedings is a disgrace and should cause us to feel extreme disgust.
Is it going to show why so many men feel themselves completely superior to, and out of empathy for women, why they abuse them so much and why there are so many more male psychopaths able to function in society than women?
Get a grip on these issues and then come back to us, eh?
I doubt the answer is going to be in behavioural psychology.
As a pupil barrister that studied Human Genetics at university this kind of report might be music to my ears. As you mention, the actual recommendations and areas of research suggested by the Royal Soc seem sensible, particularly where they focus on using scientific evidence in setting legal policy (e.g. age of responsibility). However, I’m sceptical of increasing the use of neuroscience in individual cases, for example in determining reoffending likelihood. A number of reasons:
1. If my degree taught me anything, it showed that genetic (and, perhaps by some extension, neuroscientific) determinism is rubbish. Neuroscience and behavioural genetics are hugely powerful explanatory tools but they will never be able to predict human behaviour, influenced by social causes independent of genetic predisposition. So, as the report acknowledges, a nuanced approach must be taken. Such a nuanced and flexible approach would be incredibly difficult to legislate.
2. The status of science in our society may make this even more difficult. Science is often used as a ‘trump card’ – if there’s scientific proof, it must be right! The problem is that science is of course very often equivocal, with evidence ambiguous. And the equivocal scientific positions often do not filter into the use of scientific evidence when applied to other areas (see the attempts at evidence-based policy) – where they are often presented with certainty.
3. It is likely to add to increasing costs, which if occurring in criminal cases/probation assessment would help to squeeze a squashed budget.
It makes sense to use developing tools that tell us more human behaviour and decision-making in setting the legal framework, my worry would be in our ability to use the scientific advances properly in individual cases.
Up till now the Neuroscience has not been able to find out the basic minor causes of diseases like schizophrenia, acute depression, nervous break downs, Autism, and many other countless, and here the Scientist are claiming that they will be able to read the minds or determine the behavior pattern through brain analyses and on top of that they believe that can also cure it. Fairy Tales, and Wishful thinking. I am not a very learned person but i can say it with surety that there is and never will be a possibility to overcome or determine intricate the functions of human brain . However, i do agree that the technology has played a vital role in exploring he possibilities to resolve many issues and mental dis orders but they come into different category.
Try to find the causes of the paralysis of two people, one who fell victim to any accident, and during that trauma received physical brain injuries and the one who remained untouched even by a needle, but they suffered the same, yes of course, scientifically there will be many causes which might be the blockage or damage of any particular area of the brain where faculties were effected, may be a problem of high blood pressure. and many other similar issues. But what about those who were not effect by such brain damages? . To a certain and control the the functions of the he prefrontal cortex is impossible ———–
Interesting article, but some of it sounds quite scary to me, specifically the tacit acceptance of the separation of intent from criminal act..
I wrote a quick post on it myself if that’s alright :)
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