The neurosciences not only challenge assumptions about the mind’s place in the natural world but also urge us to reconsider its role in the normative world. Based on mind-brain dualism, the law affords only one-sided protection: it systematically protects bodies and brains, but only fragmentarily minds and mental states. The fundamental question, in what ways people may legitimately change mental states of others, is largely unexplored in legal thinking. With novel technologies to both intervene into minds and detect mental activity, the law should, we suggest, introduce stand alone protection for the inner sphere of persons. We shall address some metaphysical questions concerning physical and mental harm and demonstrate gaps in current doctrines, especially in regard to manipulative interferences with decision-making processes. We then outline some reasons for the law to recognize a human right to mental liberty and propose elements of a novel criminal offence proscribing severe interventions into other minds.
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The European Union has very recently introduced a right to respect for “mental integrity” in Art. 3 of the Charter of Fundamental Rights. Also, the European Court of Human Rights includes mental integrity under the scope of Art. 8 (privacy), however, it has not played an important role (yet).
It should be noted that the study includes neurological disorders such as Parkinson’s. Still, numbers are incredibly high (Gustavsson et al. 2011).
Tort law may face similar problems as many jurisdictions rely on criteria such as “nervous shock” or “physical manifestation” of psychiatric injury to limit tortuous liability. But although a tort of harm to mental integrity is currently absent in many countries, there seems to be more willingness to consider mental injuries as harms to health. A recently drafted European model code considers “bodily integrity and health” as legally relevant interests and remarks that “personal injury includes injury to mental health only if it amounts to a medical condition”, Art. 2:201 2b (von Bar Grey 2009:359). The US tort of emotional distress seems to be the widest stand alone claim for mental harms and even there neuroscience seemingly provokes new questions (Grey 2011). Mental manipulation does not seem to be an issue anywhere. One may ask whether criminal law is needed—might a refined tort suffice to secure interests of affected persons? This depends on the scope of tort liability and recoverable damages. If, as in many European countries, tort law only has the function to compensate harms but not to punish (no punitive damages), it is insufficient to effectively deter mind-interventions. Generally, US tort law is not exportable to other, esp. European, jurisdictions.
“Supervenience” is a philosophical term of art, apt to be claimed by various positions on the mind-brain problem, from strong reductionist to moderate (non-Cartesian) views. Its meaning is spelled out in a broad variety of ways, most of which amount to the above slogan-like paraphrase; see e.g. Savellos and Yalcin (1995) and Kim (2005).
We do not consider “causation” the appropriate concept here. At least, it is a different kind of causation than the one between two events in space and time with which criminal law is usually concerned. The question what is appropriate, however, leads straight into the core problem of mind-brain metaphysics which Chalmers (1996/2010) famously termed “the hard problem of consciousness”. We couldn’t sensibly embark on that discussion here.
Reg. v. Chan-Fook  1 W.L.R. 689; Reg. v. Ireland/Burstow  AC 147.
On the endless discussion over facts and values in mental disorders e.g. Perring (2011).
District Court Aachen, Neue Juristische Wochenschrift 1950, 759.
This line of critique resembles the well-known argument of Bennett and Hacker (2003) but our claim is less ambiguous and does not depend on the correctness of theirs. Bennett and Hacker consider ascribing properties of wholes to their parts a metrological fallacy and hence the loose talk of “deciding brains” and the like as nothing but a conceptual confusion. We are not so sure that this really is a fallacy. The confusion in the use of language might simply reflect the unclarity of the subject matter, i.e. the proper relation between mind and brain. We do not categorically deny the possibility of reductionist explanations; the mind-brain problem is probably not merely a conceptual problem and is very likely not solved by conceptual analysis alone. Our worry here is only that equating mental with brain properties is not a logical necessity but the consequence of a presupposition which still awaits metaphysical clarification, let alone empirical proof. Before mental properties and symptoms of mental disorders can be sufficiently described on the physical level, equating them for normative purpose is premature, potentially confusing and obscuring necessary distinctions.
This corresponds to the symptom–oriented way many mental disorders are currently classified by in diagnostic psychiatric manuals. Its reform is one of the controversial points in the current revision of the DSM-5, see Society for Humanistic Psychology (2011).
Vis-a-vis strong reductionist objections, the law might maintain that it does protect brain states after all, only those identified by their peculiar mental effects. The law should not, however, fall from the dualistic extreme—postulating pure mental harms—into its reductionist counterpart.
For Ghrelin in appetite regulation Wren et al. (2001). This example is not completely fictitious; some food companies are accused by food experts of adding appetite stimulating substances to their products.
Kohno et al. (2009) warn about security problems of DBS.
Substances for memory dampening are clinically studied. For its prospects and legal problems see Kolber’s instructive work (2006/2008).
See Baurmeister’s et al. (2007) intricate research on willpower, ego depletion and the role of glucouse.
In the current debates about enhancing mental capacities with the help of neurotools, human-rights and constitutional law issues are largely neglected. Thus, many ethicists’ policy recommendations are somewhat premature. Without a clearer understanding of the fundamental rights involved, the legal regulation of neuroenhancements is not advisable (Bublitz 2011b).
Self-ownership with its strong assonance to property in material things is not a fully satisfactory concept here, but that leaves present argument untouched.
This does not, of course, rule out granting the status as legal subject to infants, the permanently unconscious and the gravely mentally impaired. But their status is (normatively) derivative from the paradigm case of the self-conscious, thinking person.
Particularly in bioethical debates, dignitiy often remains vague; see President’s Council (2008).
BVerfGE 30, 1, 25.
Art. 18 UDHR, Art. 18 ICCPR, Art. 9 ECHR, Art. 10 ECFR.
See e.g. UN General Comment No. 22, 1993: Art. 18 does “not permit any violation whatsoever on the freedom of thought.”
Palko v. Conneticut, 302 U.S. 319, 326–327, emph. added.
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).
The meaning of “thought” is vague. For a meaningful legal protection, it has to be interpreted broadly to include emotional states, since empirical sciences have convincingly demonstrated that emotion and cognition are interrelated phenomena; good decisionmaking seems to require emotional capacities (see e.g. Damasio’s somatic marker thesis).
Jones v. Opleinka 1942, 316 US 584, 618.
Art. 223-15-2: De l'abus frauduleux de l'état d'ignorance ou de faiblesse. Unofficial translation. The authors would like to thank Céline Gollbach for research of French law.
A proposal from the Swiss “Rapport de la Commission penale sur les derives sectaires sur la question de la manipulation mentale” (1999) reads: “Whoever has carried out physical or psychological actions in a repeated and systematical way, aimed at impairing the capacity of another person to make autonomous judgments, or at placing this other person in a state of dependency, will be punished..”. A Swedish Commission comes to the conclusion that “legislation affords insufficient protection with regard to what is termed ’improper influence’ or manipulation. Introduction of this term in the legislation would benefit both serious practitioners of religion and personal integrity … The Commission therefore proposes that the Penal Code be amended to include a new penal provision making improper influence a punishable offense.” Quoted from Richardson and Introvigne (2001).
Philosophically minded readers may quarrel over the multitude of highly normative notions such as “negative interferences” with mental self-determination. True, such concepts are in need of further explication and may prompt difficult discussions. But that is what lawyers and legal scholars do. The point here is not to formulate a catch-all definition resolving all questions. Given the abstract wording of legal provisions, designed to apply to myriads of practical cases, this is impossible. Rather, we seek to find starting points and principles to frame the issue which have to be rendered more concrete in light of particular cases.
Speaking of psychological mechanisms is, admittedly, vague. Tentatively, psychological processes are those which are best described by reference to psychological properties of persons such as fear or excitement instead of neuronal or physical occurrences. Our distinction between indirect and direct interventions does not rely on a particular mind-brain theory. The differences between causal pathways into the mind could be reformulated in reductionist terms without losing their peculiarities on which the normative differences are based. The sequences of mechanisms stimuli run through remain different, regardless of the level of description.
Of course, authenticity is one of the most challenged notions in the enhancement debate. But in our context, it has a different normative function. There, it is often understood as an interest to be observed by oneself in self-transformations, here, much less problematically, it designates an interest to be protected against others. The contested issue of what an authentic personality consists in can be left to the decision of the individual (and be left aside in our discussion).
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Bublitz, J.C., Merkel, R. Crimes Against Minds: On Mental Manipulations, Harms and a Human Right to Mental Self-Determination. Criminal Law, Philosophy 8, 51–77 (2014). https://doi.org/10.1007/s11572-012-9172-y
- Mental self-determination
- Mental integrity
- Cognitive liberty, manipulation
- Emotional harm
- Mental and bodily injury
- Freedom of thought