Journal of Law and the Biosciences, 215–217
doi:10.1093/jlb/lsu013
Peer Commentary
Advance Access Publication 0 2014
Considering advances in neuroscience
through the lenses of law and
human rights
Mark S. Frankel
Director, Scientific Responsibility, Human Rights and Law Program, American Association
for the Advancement of Science
Corresponding author. E-mail: [email protected]
A B ST R A CT
Advances in neuroscience should be subject to a robust public dialogue that
includes attention to the legal and human rights issues raised by both research and its applications.
K E Y W O R D S: human rights, judges, neuroscience, policy, Presidential
Commission
There is no doubt that continued developments in neuroscience hold great promise
for improving our understanding of disease and behavior, leading to reduced human
suffering. Yet, as with any other area of research and its possible applications, such advances do not arrive free of worrisome questions. They will prompt concerns about how
greater knowledge of the brain will affect our attitude toward cognition and emotion, or
shape views about personal responsibility, disability and free will, or influence policies
and approaches toward learning, criminal justice, and warfare. It is, therefore, appropriate for society to have a robust conversation about what such advances will mean and
how we should “manage” them. An important step in that direction is the recent solicitation of public comment by the Presidential Commission for the Study of Bioethical
Issues on “Ethical Considerations of Neuroscience Research and the Applications of
Neuroscience Research Findings”.1
1
Federal Register, Request for Comments on the Ethical Considerations of Neuroscience Research and the Application of Neuroscience Research Findings, Jan. 31, 2014, https://www.federalregister.gov/articles/2014/
01/31/2014-02072/request-for-comments-on-the-ethical-considerations-of-neuroscience-research-and-theapplication-of (last accessed July 22, 2014).
C The Author 2014. Published by Duke University School of Law, Harvard Law School, Oxford University Press,
and Stanford Law School. This is an Open Access article distributed under the terms of the Creative Commons
Attribution-NonCommercial-NoDerivs licence (http://creativecommons.org/licenses/by-nc-nd/3.0/), which
permits non-commercial reproduction and distribution of the work, in any medium, provided the original work is
not altered or transformed in any way, and that the work is properly cited. For commercial re-use, please contact
[email protected].
216
r Considering advances in neuroscience through the lenses of law and human rights
Established in 1848, the American Association for the Advancement of Science
(AAAS) is now the largest multidisciplinary science society in the world. As part of its
mission, AAAS is committed to “promote[ing] the responsible use of science in public
policy”.2 It is of concern, therefore, when science is distorted, manipulated, and otherwise misused in policy deliberations, whatever the branch of government. While the
association has many activities geared toward the executive and legislative branches of
the federal government, it has been the experience of the courts with “junk science”
that has fueled our motivation to collaborate with the judiciary to improve the use of
science in the courts. One such effort, launched in 2001 after several years of preparation, is the Court Appointed Scientific Experts (CASE) project,3 which assists judges
in identifying and vetting experts willing to serve as experts to the court, rather than for
the plaintiffs or defendants. A second initiative, started in 2006, includes seminars for
federal, state, and administrative law judges on the impacts of advances in neuroscience
for the legal system.4 Twenty seminars, hosting just over 200 judges, have been held at
sites across the country, and the series was given the 2009 Judicial Education Award
from the American Bar Association Judicial Division.
In the comments submitted to the Presidential Commission, AAAS emphasizes two
issues that greater understanding of how the human brain functions raise for our judicial
system. One focuses on the science of memory and what it tells us about eyewitness
testimony, historically a valued source of evidence in law. The other centers on insights
gained about the maturation of the human brain, and what it might mean for the way
the legal system treats juveniles. In both cases, it is critical that the triers of fact have
access to the best science available and that scientists present their research accurately
and with full disclosure of its strengths and limitations.
As a scientific society, AAAS has been a leader in the use of science and technology
in the promotion of human rights, supporting the use of rigorous scientific methodologies and innovative technological tools to human rights documentation and research.
AAAS pioneered the use of forensic science to identify the “disappeared” use of statistical evidence to document systemic human rights violations, and currently leads the
way in using remote sensing such as satellite photography to record human rights violations.5 Expanding upon its in-house capacity, AAAS manages a network of over 800
volunteer scientists, engineers, and health professionals in over 40 countries who are
available to partner with human rights organizations in support of their activities. Side
by side with this work, AAAS recognizes that scientific advances and their applications
must also be respectful of human rights.
Neuroscience will at some point usher in new understandings of human nature,
morality, autonomy, intentionality, and free will, and, in doing so, will raise concerns
about whether uncovering new insights into the brain will undermine basic human
2
3
4
5
AAAS, http://www.aaas.org/about-aaas (last accessed July 22, 2014).
AAAS, Court Appointed Scientific Experts (CASE), http://www.aaas.org/page/court-appointed-scientificexperts-case (last accessed July 22, 2014).
AAAS, Judicial Seminars on Emerging Issues in Neuroscience, http://www.aaas.org/page/judicial-seminarsemerging-issues-neuroscience (last accessed July 22, 2014).
AAAS, Human Rights Activities, http://www.aaas.org/page/srhrl-human-rights-activities (last accessed July 22,
2014).
Considering advances in neuroscience through the lenses of law and human rights
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rights, such as “the right to freedom of thought, [and] conscience”.6 The advent of technologies to read minds and to enhance or numb emotions with greater precision than
is now possible leads to questions about who will be “at the controls” when making decisions about their use, access, and accountability. There is also a need to consider how
greater knowledge of how people think, weigh various trade-offs, or behave in conflict
situations will affect political discourse and risk–benefit calculations in trade negotiations, military interventions, or the use of lethal or non-lethal measures. In such matters,
the power of science to affect human rights is good reason for cautious reflection.
6
The Universal Declaration of Human Rights, Article 18, http://www.un.org/en/documents/udhr/ (last accessed July 22, 2014).