In this blog post, Talya Deibel outlines one of her approaches to connections between law and the inner self: drawing on STS as a methodology. Talya is a senior postdoctoral researcher in the Law and the Inner Self Project, leading the work on the 6th body of jurisprudence (the jurisprudence of digital transformations).
Some might say that we are nothing but our bodies, cells, tissues, organs, and complex bio-chemical interactions in neural circuits. Or, perhaps, the human experience revolves around a rich and complex inner life, a forum internum, studied by (legal) philosophers, psychologists, critical scholars, and scientists for centuries in terms of emotions, feelings, thoughts, hopes and desires.
Lately the discussion over the authentic experience of the human mind has resurfaced in the context of neuroscience and the various ways to monitor the physical and biochemical states of brain activity. Examples include functional MRI (fMRI) scans and brain computer interfaces (BMIs). This includes legal scholars, responding to the expectation that it will be possible to explain what is going on in our mind based on objective and precise scientific data. Will it be possible to assess legal matters such as intent, fault, capacity much more easily and efficiently?
Law as a social system is intertwined with the epistemic authority of science. Using scientific data in law is seen as creating efficacy, efficiency, and legitimacy. Monitoring brain activities are predicted to guide judges in straightforward legal cases. Does the elderly person still have the cognitive capacity to understand the consequences of his/her actions? Some cases, however, are not so simple; the relationship between law and technology is not singular, but multiple -- in its relations to the sciences, legal specializations, philosophies, etc. One of these boundary cases is the “inner self” and its legal implications. Can our inner self be quantified? Can neurotechnology inform law about how to assess legal questions regarding the inner realm such as the freedom of thought, autonomy of will, criminal intent, emotional damages and so on?
These questions are indicative of a more pluralistic methodology, as an approach to the relationship between law and technology. Such an approach requires prima facie to be critical of the long history of compromises in legal theory, understanding science and technology as social constructs, and being mindful of their complex interaction with approaches that prioritize the efficiency of positive law, technology policy, and regulatory frameworks. This is where STS (Science, Technology and Society) comes into the discussion.
What is STS?
STS as a social science field analyses the intricacies between nature, science, technology, and society. Its literature is based on history of ideas, philosophy of science, social constructivism, and critical theory. The primary questions of STS are related to how different types of scientific knowledge are created and how they shape society.
As such, STS also inevitably deals with the specificity of law. Law is neither a bureaucratic constraint in the scientific process nor a magical tool to ensure justice in technoscientific developments. Such views miss the nuances of the relation between external ontological categories and legal norms. After all, technology affects and is affected by society, and this includes law.
Reality is messy, and this extends to any expectations that new sciences or technologies could be incorporated into the law as discrete objects. For example, biological knowledge is always changing, even as it is expected to help law decide what a human being is and hence, fulfil the duty of the legal system to protect personality and human rights. The same applies to law’s usage of neuroscientific knowledge when analysing the inner realm.
Lawyers v. scientists
Law and science have always been intertwined. Their complex relationship was visible long before positivism came to characterize sociology and long before the advancements in neurotechnology. According to the Romans, law was the science of just and unjust. (Corpus Iuris Civilis, Ins. I, 1.) In Justinian’s compilation, which is the first extensive private law codification in Europe, law was referred to as scientia. According to Langdell, the first Dean of Harvard Law School, the library was the lawyer’s laboratory.
However, the contestability of legal judgments and values as the primary axis in law redefined law’s relationship to science. This created a flat view on law and technology, which assumes a direct and one-dimensional relationship between scientific developments and rule systems. Such a flat view still exists today, and it is especially visible in the relationship between neuroscience and law. It is sometimes assumed that neurotechnological developments can be easily understood, digested, and regulated by law or that law could be a primary actor in determining the future of neurotechnological innovations.
What, however, if scientific knowledge is seen as a social and cultural phenomenon? What if, following STS scholars, knowledge should be understood in contrast to positivist accounts of law? The result is a co-dependent relationship between law and technology, which Sheila Jasanoff characterizes as “co-production”. This term seeks to explain how scientific and legal knowledge are in a constant and reciprocal state of producing each other. To be able to comment on the role of neuroscience in law, we need to contemplate how they co-exist and, as legal scholars, we can go beyond the surface of the problem and investigate what are the underlying generative and transformative dynamics.
STS in the lawyer’s tool kit
STS is based on the premise that the binary concepts in technology fail to define contemporary society. This applies to dichotomies like subject/object, inner/outer, mind/body and so on. One of the major theoretical approaches in STS scholarship is Actor Network Theory (ANT). According to Bruno Latour, the best-known author in STS, it is not enough to understand science and its impact on society to understand science and technology. One should take all the elements in the network into account to have a grasp on the interrelated dynamics of law and technology. Scientific communities, scientific methods, objects, patterns, symbols, and even social movements have agency. An object is not only an object with respect to law. It refers to a multiplicity of subject-object relationships with different types of nature and different types of performativity. Normativity in law is only one type of performance in this specific knowledge regime.
STS methodology motivates us to look for more flexible approaches and for alternative ways to overcome such dualisms. This is also applicable when discussing how neurotechnology might affect law’s approach to the inner self. Its implication might be that new types of ownerships should be considered when it comes to neurotechnological devices or that the protection of personality in the age of neuroscience requires an update. Such conclusions, however, begin with the assumption that none of the boundaries are clear, and that law needs to foster identity and dignity when everything is already in our inner sphere.
To Sum Up
Following an STS methodology does not mean that law should not aim for conceptual clarity anymore. Rather, it reminds us that legal traditions are constantly changing through their interaction with the hybridities of neurotechnology and similar new technologies. STS case studies in law imply that legal scholars need to strengthen legal theories through critique and creativity. First, there is a critical analysis of the scientific process, the usage and interpretation of neuroscientific data such as race, gender, class, or the experiences of primary actors such as users of neurotechnologies. Subsequently the inner self can be reconstructed, with law putting the critical, the comparative, the historical and the philosophical back in the game. STS deepens the existing legal traditions in law as transhistorical regimes of knowledge. Such pluralistic methodology is particularly useful when dealing with the “wild zones” of neurotechnology.