The French Criminal Code of 1810, which was established after the French Revolution, is one of the first documents to regulate the procedure for the trial of the mentally ill. Article 64 of the same Criminal Code states that "if the accused person is mentally ill/insane at the time of committing the act, he will not be considered to have committed the crime." This proposal requires a revision of the procedure for the sentences to be applied. The idea of acquitting criminals by labeling them mentally ill has caused a great deal of resonance in many circles and has led to various problems, especially in the field of ethics. In this context, in the period covering the end of the 18th century and the beginning of the 19th century, the fields of law, medicine and neurology dealt with these problems by building interdisciplinary bridges. There are a number of considerations regarding the propensity to commit a crime. One of them is the theory of phrenology. Let's consider it: *Phrenology: Can the structure of the brain be an indicator of a person's personal qualities? Phrenology, a physiological hypothesis developed by F. Joseph Gall, postulates that the brain is composed of many parts, each part serving a particular instinct and power. The German neurologist studied the structure and shape of the brain and paved the way for the emergence of the science of criminology. Phrenology assumes that an individual's psychological capabilities depend on his physical characteristics and brain structure. (You can see the Phrenological table in the pictures below) Soon, the application of this view, which was one of the first theories directly linking the brain structure and personal characteristics, began to be discussed in various fields. For more than two centuries, phrenology and psychiatry have worked together to identify individuals with criminal tendencies based on brain structure. Although the individuals they analyzed had some intellectual ability, they were equated with what doctors called "obsession with death" or "moral insanity." Thus, it was concluded that the suspects should be treated in special institutions.
In the United States and Europe, phrenology has greatly influenced criminal law. Lawyers have used phrenology as a tool to determine the mental state of the accused and to read the inner self during criminal trials. In addition, during criminal law reforms, phrenologists acted as expert witnesses in courts. Although later relegated to "pseudoscience" status, phrenology constituted the first scientific explanation of mental illness and established some of the basic assumptions of current neuropsychology (such as brain localization). Today, phrenology is not considered a reliable type of knowledge and is completely excluded from science. *Lombroso's theory: Is it possible to create a typology of criminals based on genetic traits?In the late 19th century, a number of Italian legal criminologists who followed the positivist school (Cesar Lombroso, Raphael Garofalo, and Enrico Ferri) developed ideas about criminal law along the lines of the French philosopher and father of positivism, Auguste Comte. They propose to approach each criminal individually and evaluate his characteristics, as they assume that the criminal's propensity to commit a crime is caused by internal and external reasons. With this, they aim to maintain order in society and eliminate the threat of crime. Together, Lombroso, Garofalo, and Ferri formed the "Italian Positivist School" and attempted to explain criminal behavior based on determinism related to the personality traits of criminals. While Ferri examined the crime phenomenon from a statistical point of view, Lombroso emphasized the importance of the social environment as a factor that can reveal the presence of criminal tendencies. In order to identify the distinguishing characteristics of criminals, Cesare Lombroso identified hereditary morphological traits that he claimed were present in individuals born criminal. He founded anthropology in the light of these physiological signs, which he called "stigmata". This anthropology of crime was based on outdated theories about "born criminals" that Lombroso considered incorrigible in his day. According to the criminologist, insane criminals become criminals because of a "brain change" that completely destroys their moral essence, and in this way they differ from natural criminals. Lombroso concluded that criminals could not be held responsible for their actions because free will would be impaired as a result of the brain change.
Lombroso's theory and proponents of the Italian positivist school were criticized by the medical and legal worlds for denying science. The objections were reinforced when Lombroso wrote in one of his writings that his theory was only 30% certain. As a matter of fact, these studies have gone down in history as an interesting attempt to create a criminal typology that differentiates between the mentally ill and the suspect.
* Some of the issues involved in neuroscience. Behavioral disorders resulting from structural and functional disorders in the brain have led to the inclusion of neuroscience in the scope of criminal law and forensic psychiatry. *Forensic responsibility The concept of "forensic responsibility" belonging to the ethical side of neuroscience calls into question certain practices when a person is not conscious. In this context, it is assumed that the verdict of innocence is issued by the doctors on behalf of the patient. Thoughts on the applications of neuroscience in criminal law are polarized along two main lines: The first of these overarching thoughts views the concept of "responsibility" as a vindictive and punitive concept. They urged the legal system to look at the issue of judicial responsibility from a pragmatic perspective rather than a punitive one. Instead of punishing criminals, they suggested rehabilitation.
The second view was developed by neuroscientists and concerns the application of neuroscience. They consider neuroscience as a resource to be consulted in improving the principles of existing criminal law and in the process of prosecuting defendants. In this regard, imaging devices have been used to analyze criminal behavior by tracking the brain regions it stimulates and the neurons it activates. Indeed, it is necessary to take into account that in cases where these images obtained through brain imaging devices, especially EEG (if you remember, we talked about the EEG-electroencephalography device in our previous articles), are uncontrolled or leaked to the other party, the courts can make unfair decisions. Public safety would be greatly compromised by imaging evaluations based on the assumptions of judges, independent of competent neuroscientists. In addition, neuroscience is a factor that increases the tendency of criminal policy to focus on the threat of recidivism. Neuroscience favors medical approaches in crime and encourages therapeutic interventions. Although this approach seems like a rational solution to prevent recidivism, it cannot be overlooked that drugs and tranquilizers are different substances. Unlike drugs that have a therapeutic effect, tranquilizers serve to improve the functions that already exist in the human body. Today, psychopharmacology is a science that also deals with substances that affect the brain.
In the early 20th century, some plant-based traditional medicines such as opium, cannabis, and alcohol began to be used as psychiatric compounds. In the first half of the 20th century, psychopharmacological products aimed at improving the mood of individuals were followed by tranquilizers and antidepressants. After the 1950s, the field of psychopharmacology experienced an explosion of substances developed in a very short period of time. American psychiatrist Peter Kramer first introduced antidepressants as "auxiliary drugs" in his book "Listening to Prozac". This highly influential book led many people to use anti-depressants and became the source of depressive tendencies. Although psychopharmacological substances can be used for purposes such as improving brain function, the medical community still debates whether these substances are appropriate to administer to a healthy person. In the moral dimension, the basic condition is that the individual freely chooses to use these substances. Indeed, in the neoliberal era in which we live, commercialization activities are becoming more and more widespread. In this context, psychopharmacological products share the same fate as many other products on the market, and their release is unconsciously accelerated.
*Birth of Neurolaw
The term "Neurolaw" was first used by attorney J. Sherrod Taylor in an article he wrote about the advances in neuroscience needed for civil law. The article was published in The Neurolaw Letter, a journal for American criminal lawyers published in the early 1990s. A product of multidisciplinary thinking, Neurolaw deals with the legal applications of neuroscience. This field of research, which is closely related to philosophy, social psychology, cognitive neurology and criminology, develops itself in the light of scientific developments. The idea of building a bridge between medicine and law, which is considered a priority by phrenology and Lombroso's theories, became concrete with the creation of the field of neuro-law. This area of law, where the law meets neuroscience, is thought to play a role in improving criminal law by examining the neurobiological origins of human behavior. As neurobiological knowledge increases, the concept of guilt becomes more complex and paves the way for the advancement of the legal system. David M. Eaglemann, professor of neuroscience and author of the popular book Incognito: The Secret Life of the Brain, supports this premise and argues that a pro-justice neuroscience will contribute to a conception of justice. In criminal law, criteria must be established to analyze the mood of accused persons and witnesses, to control the defendant's control of his behavior. Eaglemann says that these criteria should be monitored by experts. Neurolaw is more than the science of the brain; it covers human behavior, interactions and mental life. In conclusion, I can say that neuroscience is one of the measures used in criminal law to prevent the commission of a crime. But and yet... The scientific and moral side of the matter shows that not all societies are ready for these experiments yet. However, in societies that have the necessary scientific infrastructure and pay attention to the free will and personal consent of the individual, it would be appropriate to carry out pragmatic reforms in criminal law that emphasize neuroscience.
Sources:
https://news.law.fordham.edu/blog/2016/03/ 03/when-law-and-neuroscience-collide/ https://www.fordham.edu/school-of-law/centers-and-institutes/neuroscience-and-law-center/ https://amjudges.org/ conferences/2015Annual/Materials/Shen-Rec-Reading-JonesShen_2011_LawAndNeuroscienceInUS.pdfhttps://ledroitcriminel.fr/la_legislation_criminelle/anciens_textes/code_penal_1810/code_penal_1810_1.html https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6610327 /S. Lighthart, *et al*. (2021). The Future Of Neuroethics And The Relevance Of The Law- https://philpapers.org/archive/LIGTFO.pdfD. Kennedy. (2004). Neuroscience And Neuroethics.https://www.science.org/doi/full/10.1126/science.306.5695.373G. Barbier et al. Prison And Mental Disorders: How To Remedy The Drifts Of The French System? N. Edelman. (2006). Marc Renneville, Crime Et Folie. Deux Siècles D’enquêtes Médicales Et Judiciaires https://journals.openedition.org/rh19/1176 https://leelofland.com/10-incredible-facts-about-the-criminal-brain/
