Abstract
Previous publications discussed the conditions under which courts admitted or could admit neurotechnological evidence like brain scans. There were also first attempts to investigate legal decisions neuroscientifically. The present paper analyzes a different way in which neuroscience already influenced the law: The legal justification of the new Dutch adolescent criminal law explicitly mentions findings on brain development to justify a higher maximum age for the application of juvenile criminal law than before. The lawmaker’s reasoning is compared with the neuroscientific studies on which it is based. In particular, three neurodevelopmental publications quoted by the Dutch Council for the Administration of Criminal Justice and Protection of Juveniles to justify that adolescents can be legally less responsible are analyzed in detail. The paper also addresses possibilities under which brain research could improve legal decision-making in the future. One important aspect turns out to be that neuroscience should not only matter on the level of justification, but also provide better instruments on the individual level of application.
Highlights
Neuroethics has been introduced as a twofold endeavor: the ethics of neuroscience and the neuroscience of ethics
Scholars of different disciplines and countries discussed in much detail if and how courts made use of neuroscientific evidence (e.g., Schleim, 2011, 2012, 2019; Spranger, 2012; Farahany, 2015; Hoffman, 2018; Greely and Farahany, 2019)
According to my analysis, the mismatch between the quoted neuroscientific evidence and the legal justification as well as the lack of practical applications call this initiative into question
Summary
Neuroethics has been introduced as a twofold endeavor: the ethics of neuroscience and the neuroscience of ethics. Neurolaw could be understood in a similar vein: legal regulation of neurotechnology on the one hand (Goodenough and Tucker, 2010; Spranger, 2012) and the neuroscience of legal decision-making on the other (e.g., Schleim et al, 2011). It is yet less institutionalized than neuroethics, but recently in this journal, Bigenwald and Chambon (2019) discussed the possible contribution of neuroscience to the law and concluded that neurotechnology might primarily improve the fact-finding in court. I am demonstrating in this paper that, beyond such theoretical considerations (Greene and Cohen, 2004), the Netherlands provide an example of real neurolaw in the sense that the lawmakers essentially
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