A Biosemiotic Body of Law: The Neurobiology of Justice

We offer a theory regarding the symbolism of the human body in legal discourse. The theory blends legal theory, the neuroscience of empathy, and biosemiotics, a branch of semiotics that combines semiotics with theoretical biology. Our theory posits that this symbolism of the body is not solely a metaphor or semiotic sign of how law is cognitively structured in the mind. We propose that it also signifies neurobiological mechanisms of social emotion in the brain that are involved in the social and moral decision-making and behavior that law generally seeks to govern. Specifically, we hypothesize that the symbol of a collective human body in the language of law signifies neural mechanisms of pain empathy which generate a virtual, neurally simulated, emotional sense of sharing the feelings or pain of others and of thereby being one-in-body with or virtually equal to them. We speculate that this may be the neural basis of what is signified in legal and political theory as the “body politic” or “sense of equality,” because neuroscience and psychiatry further suggest that such pain empathy may provide the natural, emotional motivation to think and act in a rights-based manner. We conclude that misunderstanding of these neural mechanisms of pain empathy and related misinterpretation of this corporeal symbolism for the same may have long resulted in legal discourse that misinterprets the function of “pain” in the law and misinterprets the associated positive law, specifically the law regarding individual, equality-based rights and criminal justice, in particular, punishment theory.     

‘Won’t Somebody Please Think of the Children?’ Hate Speech,Harm, and Childhood

Some authors claim that hate speech plays a key role in perpetuating unjust social hierarchy. One prima facie plausible hypothesis about how this occurs is that hate speech has a pernicious influence on the attitudes of children. Here I argue that this hypothesis has an important part to play in the formulation of an especially robust case for general legal prohibitions on hate speech. If our account of the mechanism via which hate speech effects its harms is built around claims about hate speech’s influence on children, then we will be better placed to acquire evidence that demonstrates the processes posited in our account, and better placed to ascribe responsibility for these harms to individuals who engage in hate speech. I briefly suggest some policy implications that come with developing an account of the harm of hate speech along these lines.

     

New science,old convictions ? Texas Senate Bill 344: identifying further necessary reform in forensic science

In June 2013, Texas Senate Bill 344 (SB 344) was signed into law after strong Innocence Project support. SB 344 has since transformed the Texan judicial landscape. Known as the ‘Junk Science Writ’, SB 344 enables the court to grant habeas corpus relief based on scientific evidence that ‘(1) was not available to be offered by a convicted person at the convicted person''s trial; or (2) contradicts scientific evidence relied on by the state at trial’. Inmates, such as the ‘San Antonio Four’, whose convictions were based upon what is now considered ‘faulty’ medical and forensic testimony, have been released under SB 344. Yet, science, as a field dependent on innovation, is inherently prone to debunking the scientific and forensic methods the law has relied upon to convict individuals. This commentary identifies policy behind SB 344, how SB 344 may influence the perception of science in the courtroom, and how ‘junk science’ is defined and/or limited. Furthermore, this commentary concludes that to achieve justice in the legal system through habeas relief based on ‘junk science’, it is necessary to revitalize and standardize forensic science.     

Back to first principles: a new model for the regulation of drug promotion

The US Food and Drug Administration''s (‘FDA’ or the ‘Agency’) current regulatory framework for drug promotion, by significantly restricting the ability of drug manufacturers to communicate important, accurate, up-to-date scientific information about their products that is truthful and non-misleading, runs afoul of the First Amendment and actually runs counter to the Agency''s public health mission. Our article proposes a New Model that represents an initial proposal for a modern, sustainable regulatory framework that comprehensively addresses drug promotion while protecting the public health, protecting manufacturers’ First Amendment rights, establishing clear and understandable rules, and maintaining the integrity of the FDA approval process. The New Model would create three categories of manufacturer communications—(1) Scientific Exchange and Other Exempt Communications, (2) Non-Core Communications, and (3) Core Communications—that would be regulated consistent with the First Amendment and according to the strength of the government''s interest in regulating the specific communications included within each category. The New Model should address the FDA''s concerns related to off-label speech while protecting drug manufacturers’ freedom to engage in truthful and non-misleading communications about their products.     

INTERNET INTERMEDIARIES’ LIABILITY FOR ONLINE ILLEGAL HATE SPEECH

Considering the prevalence of online hate speech and its harm and risks to the targeted people, democratic discourse and public security, it is necessary to combat online hate speech. For this purpose, internet intermediaries play a crucial role as new governors of online speech. However, there is no universal definition of hate speech. Rules concerning this vary in different countries depending on their social, ethical, legal and religious backgrounds. The answer to the question of who can be liable for online hate speech also varies in different countries depending on the social, cultural, history, legal and political backgrounds. The First Amendment, cyberliberalism and the priority of promoting the emerging internet industry lead to the U.S. model, which offers intermediaries wide exemptions from liability for third-party illegal content. Conversely, the Chinese model of cyberpaternalism prefers to control online content on ideological, political and national security grounds through indirect methods, whereas the European Union (EU) and most European countries, including Germany, choose the middle ground to achieve balance between restricting online illegal hate speech and the freedom of speech as well as internet innovation. It is worth noting that there is a heated discussion on whether intermediary liability exemptions are still suitable for the world today, and there is a tendency in the EU to expand intermediary liability by imposing obligation on online platforms to tackle illegal hate speech. However, these reforms are again criticized as they could lead to erosion of the EU legal framework as well as privatization of law enforcement through algorithmic tools. Those critical issues relate to the central questions of whether intermediaries should be liable for user-generated illegal hate speech at all and, if so, how should they fulfill these liabilities? Based on the analysis of the different basic standpoints of cyberliberalists and cyberpaternalists on the internet regulation as well as the arguments of proponents and opponents of the intermediary liability exemptions, especially the debates over factual impracticality and legal restraints, impact on internet innovation and the chilling effect on freedom of speech in the case that intermediaries bear liabilities for illegal third-party content, the paper argues that the arguments for intermediary liability exemptions are not any more tenable or plausible in the web 3.0 era. The outdated intermediary immunity doctrine needs to be reformed and amended. Furthermore, intermediaries are becoming the new governors of online speech and platforms now have the power to curtail online hate speech. Thus, the attention should turn to the appropriate design of legal responsibilities of intermediaries. The possible suggestions could be the following three points: Imposing liability on intermediaries for illegal hate speech requires national law and international human rights norms as the outer boundary; openness, transparency and accountability as internal constraints; balance of multi-interests and involvement of multi-stakeholders in internet governance regime.     

What is hate speech? Part 1: The Myth of Hate

The issue of hate speech has received significant attention from legal scholars and philosophers alike. But the vast majority of this attention has been focused on presenting and critically evaluating arguments for and against hate speech bans as opposed to the prior task of conceptually analysing the term ‘hate speech’ itself. This two-part article aims to put right that imbalance. It goes beyond legal texts and judgements and beyond the legal concept hate speech in an attempt to understand the general concept hate speech. And it does so using a range of well-known methods of conceptual analysis that are distinctive of analytic philosophy. One of its main aims is to explode the myth that emotions, feelings, or attitudes of hate or hatred are part of the essential nature of hate speech. It also argues that hate speech is best conceived as a family resemblances concept. One important implication is that when looking at the full range of ways of combating hate speech, including but not limited to the use of criminal law, there is every reason to embrace an understanding of hate speech as a heterogeneous collection of expressive phenomena. Another is that it would be unsound to reject hate speech laws on the premise that they are effectively in the business of criminalising emotions, feelings, or attitudes of hate or hatred.     

What is Hate Speech? Part 2: Family Resemblances

The issue of hate speech has received significant attention from legal scholars and philosophers alike. But the vast majority of this attention has been focused on presenting and critically evaluating arguments for and against hate speech bans as opposed to the prior task of conceptually analysing the term ‘hate speech’ itself. This two-part article aims to put right that imbalance. It goes beyond legal texts and judgements and beyond the legal concept hate speech in an attempt to understand the general concept hate speech. And it does so using a range of well-known methods of conceptual analysis that are distinctive of analytic philosophy. One of its main aims is to explode the myth that emotions, feelings, or attitudes of hate or hatred are part of the essential nature of hate speech. It also argues that hate speech is best conceived as a family resemblances concept. One important implication is that when looking at the full range of ways of combating hate speech, including but not limited to the use of criminal law, there is every reason to embrace an understanding of hate speech as a heterogeneous collection of expressive phenomena. Another is that it would be unsound to reject hate speech laws on the premise that they are effectively in the business of criminalising emotions, feelings, or attitudes of hate or hatred.     

‘Tolling for the luckless,the abandoned and forsaked’: Therapeutic jurisprudence and international human rights law as applied to prisoners and detainees by forensic psychologists

Objectives. There has been an explosion of interest in therapeutic jurisprudence as both a filter and lens for viewing the extent to which the legal system serves therapeutic or anti‐therapeutic consequences. However, little attention has been paid to the impact of therapeutic jurisprudence on questions of international human rights law and the role of forensic psychologists. The paper aims to provide an intersection between human rights, therapeutic jurisprudence, and forensic psychology. Method. Human rights are based on legal, social, and moral rules. Human rights literature generally considers legal rights but such policy statements do not provide principles to guide forensic psychologists in addressing moral or social rights. Therefore, a framework to guide forensic psychologists is required. Conclusion. As duty‐bearers, forensic psychologists need to address the core values of freedom and well‐being in rights holders (in this instance, prisoners and detainees with a mental illness). The paper proposes that human rights principles can add to the normative base of a therapeutic jurisprudence framework, and in‐turn, therapeutic jurisprudence can assist forensic psychologists to actively address human rights.     

The most plausible pro-coercion view: requiring informed agreement while penalizing non-participation in research

In ‘(Why) should we require consent to research?’ Alan Wertheimer probes whether it is legitimate for the government to ‘coerce’ people into participating in biomedical research, including interventional biomedical research. In debating the rules that ought to govern participation in interventional biomedical research, we should distinguish two separate moral claims. First, interventional research should proceed only when the subject has given her informed agreement. Second, it is legitimate for the state to set a requirement that people participate in interventional biomedical research, and to penalize or punish those who refuse to participate. The most plausible ‘pro-coercion’ view accepts both of these claims. Though I stop short of endorsing this view, it captures important ‘pro-coercion’ and ‘anti-coercion’ intuitions.     

Egg freezing,stratified reproduction and the logic of not

This commentary examines social and political implications of social egg freezing in a market that is stratified, globalized, and part of a larger bioeconomy. John Robertson''s article and public discourse prompted by Facebook and Apple''s ‘corporate egg freezing’ benefits provide touchstones for interrogating social and industry practices that embrace making reproductive capacity marketable. Supply of the cells and bodies necessary for assisted reproductive technology use depends on market thinking and structural inequality. What the industry produces are carefully calibrated social-political distances between participants in egg freezing and banking, as well as ‘third party reproduction.’     

Deadly Words: State Power and the Entanglement of Speech and Violence in Hate Crime

Any analysis of hate crime that attempts to separate speech from action, language from violence, faces epistemological difficulties that limit the range of conversations about laws responding to identity-based injury in the United States. Active debates have raged over the implications of bias crime sentence enhancement laws for the protection of ‘freespeech’, thus addressing the inextricability of language and meaning from hate crime. Those in favor of legal responses to identity-based injury tend toward essentialist claims which assume the stability of identity and of meanings inherent in words or actions. Those opposed assert the impossibility of codifying the meaning of words or actions in the law, and/or they worry about the reification of (victimized) identities accompanying bias crime statutes. This article argues that the focus on language and speech in these debates simultaneously enables an evasion of discussion about the law's response to bias-related violence, and misleadingly assumes too much stability in the functions of law and the nature of state power. Interviews conducted by the author with individuals involved in a 1992 racist hate crime are used to show the diverse elements of state power suffusing the incident and its aftermath. An analysis of the crime's investigation and prosecution under a Maryland hate crime statute suggests that law enforcement officers are primarily using hate crime laws as public relations tools in a fight against community perceptions that they are themselves bigots. This revised version was published online in July 2006 with corrections to the Cover Date.     

Dignity, Harm, and Hate Speech

This paper examines two recent contributions to the hate speech literature – by Steven Heyman and Jeremy Waldron – which seek a justification for the legal restriction of hate speech in an account of the way that hate speech infringes against people’s dignity. These analyses look beyond the first-order hurts and disadvantages suffered by the immediate targets of hate speech, and consider the prospect of hate speech sustaining complex social structures whose wide-scale operations lower the social status of members of targeted groups. In Heyman’s and Waldron’s accounts we find plausible insights into the nature of identity-based social hierarchies, and the harms that redound to subordinated people under the operations of such hierarchies. I argue, however, that both analyses are unsuccessful as justifications for the restriction of hate speech, because they do not ultimately provide reason to think that hate speech is responsible for creating or sustaining identity-based social hierarchies.     

Medical regulation of cognitive enhancement devices: some concerns

The authors present a cogent and detailed case for altering the Medical Devices Directive to allow regulation of cognitive enhancement devices (CEDs). Protection against significant risk of harm, especially for the vulnerable, and promotion of benefit through informed use of CEDs are all good features of the proposal. However, the pre-market approval process has limitations, which we explore. We raise the possibility of ‘risk compensation’ in response to the introduction of safety measures, which could alter its effectiveness. The proposal alludes to use of ‘formally trained practitioners,’ which provide a further tier of regulation for CEDs within the proposal. We consider some positive and negative implications of this aspect of the proposal that might warrant further consideration.     

The Child in European Human Rights Law

This article examines the category of ‘the child’ in European human rights law, based on an analysis of the child‐related jurisprudence of the European Court of Human Rights. It argues that a full account of legal selfhood is constructed through the notion of ‘the child’ in this jurisprudence. The two notions – of ‘the child’ and ‘the self’ – are, from the outset, mutually dependent. The conceptualisation of ‘the child’ in human rights law is underpinned by an account of the self as originating in another and childhood is cast as enabling self‐understanding by making possible the formation of a narrative about the self. The vision of ‘the self’ that emerges is one of ‘the narrative self’, and I assess the implications of this both for the idea of childhood in which this narrative originates and for the vision of the human condition that is expressed in European human rights law more broadly.     

Judicial Epistemology of Free Speech Through Ancient Lenses

The article is the author’s endeavor to reconstruct the semiotic conflict in the transatlantic legal appraisal of hate speech (between the USA and Europe) through Ancient Greek concepts of παρρησία (parrhēsia) and ισηγορία (isēgoria). The US Supreme Court case law on the First Amendment to American Constitution is, therefore, counter-balanced vis-à-vis la jurisprudence de Strasbourg on Article 10 of the European Convention of Human Rights. The author suggests that an adequate comprehension of the contemporary constitutional concepts of the right to free speech in Western democracies is deceptive without a thorough analysis of its genealogy in the Ancient rhetorical cradle.     

Hate Speech and the Epistemology of Justice

In ‘The Harm in Hate Speech’ Waldron’s most interesting and ground-breaking contribution lies in a distinctive epistemological role he assigns to hate speech legislation: it is necessary for assurance of justice, and thus for justice itself. He regards public social recognition of what is owed to citizens as a public good, contributing to basic dignity and social standing of citizens. His claim that hate speech in the public social environment damages assurance of justice has wider implications, I argue: for hate speech conducted in private; for pornography; and indeed for any speech that thwarts knowledge of what justice requires.     

The impact of international human rights norms—a “law undergoing evolution”

Abstract

In this paper, the author outlines the history of, and reasons for, the growing impact of international human rights jurisprudence upon the work of judges in New Zealand, Australia, England and elsewhere in the Commonwealth of Nations. Formerly, international and domestic law were virtually entirely separate. But now, there is increasing legal authority to support the use of international human rights jurisprudence in domestic judicial decision‐making. It can be done in the application of constitutional or statutory provisions reflecting universal principles stated in international treaties. But, according to the Bangalore Principles, it can also be done where there is a gap in the common law or where a local statute is ambiguous. The judge may then fill the gap or resolve the ambiguity by reference to international human rights jurisprudence which will ensure that domestic law conforms, as far as possible, to such principles.

In its decision in Tavita, the New Zealand Court of Appeal declared this to be “a law … undergoing evolution”. The author outlines some of the impediments and problems for the evolution. But he also collects the reasons why it is a natural and inevitable phase of the common law in the current age. He suggests that judges should be aware of the developments. In appropriate cases, they should inform their decisions with relevant international human rights jurisprudence. That will at least ensure that they develop domestic human rights law in a principled way, consistently with international law, and not in an idiosyncratic fashion “discovering” new fundamental rights which may otherwise be criticised as mere judicial invention.     

Yesterday's war; tomorrow's technology: peer commentary on ‘Ethical,legal, social and policy issues in the use of genomic technologies by the US military’

A recent article by Maxwell J. Mehlman and Tracy Yeheng Li, in the Journal of Law and the Biosciences, sought to examine the ethical, legal, social, and policy issues associated with the use of genetic screening and germ-line therapies (‘genomic technologies’) by the US Military. In this commentary, we will elaborate several related matters: the relationship between genetic and non-genetic screening methods, the history of selection processes and force strength, and the consequences and ethics of, as Mehlman and Li suggest, engineering enhanced soldiers. We contend, first, that the strengths of genomic testing as a method of determining enrollment in the armed forces has limited appeal, given the state of current selection methods in the US armed forces. Second, that the vagaries of genetic selection, much like other forms of selection that do not bear causally or reliably on soldier performance (such as race, gender, and sexuality), pose a systematic threat to force strength by limiting the (valuable) diversity of combat units. Third, that the idea of enhancing warfighters through germ-line interventions poses serious ethical issues in terms of the control and ownership of ‘enhancements’ when members separate from service.