Integrating Neuroscience in Criminal Law: The Dutch Situation as an Example

Abstract

Empirical findings demonstrate that neuroscientific expertise is increasingly prevalent in courtrooms. This suggests that both "territorial conflicts" between law and neuroscience-for example about how to conceptualize concepts like culpability-and questions regarding the integration of neuroscience and law, which both have long been present in theoretical discussions, are now finding their way to legal practice. As jurisdictions around the globe differ on multiple dimensions (e.g., on how concepts like culpability are conceptualized, embedded in legal doctrine, and how integration of neuroscience takes place within (procedural) legal frameworks) analyses on a national level are needed next to universal endeavors. In this article, the Dutch situation will be addressed. First, we will assess whether the theoretical notions underlying Dutch criminal law are compatible with the theoretical discussion between neuroscience and legal doctrine. Second, we turn to empirical evidence as to the way neuroscientific information is brought into Dutch legal practice. Finally, we will examine how (well) the current practice of forensic assessment is able to accommodate neuroscientific information. Herewith, we aim to illustrate that the manner of integration is indeed dependent on jurisdiction specific features and that the international debate would benefit from more national perspectives.

Scratching the structure of moral agency: insights from philosophy applied to neuroscience

“…Consider, for instance, the practical application of questions of free will, agency, or moral motivation in the criminal justice system. This is a field where neuroscience is becoming increasingly relevant, both from an academic and a forensic practice point of view ( Slobogin, 2017 ; Alimardani and Chin, 2019 ; Greely and Farahany, 2019 ; Noyon et al, 2019 ; Pernu and Elzein, 2020 ), precisely because the basic element of criminal responsibility is the free will, namely the freedom to decide to commit a crime, and one of the elements of the graduation of criminal responsibility rests on the moral motivation of the subject ( Pernu and Elzein, 2020 ). To the extent that the criminal justice system is designed to hold accountable people who supposedly make decisions voluntarily and freely (which of course involves elements of conscience), it is logical that some of these assumptions are being affected by findings from neuroscience.…”