Cognitive liberty. A first step towards a human neuro-rights declaration
Cognitive Liberty. A first step towards a human neuro-rights declaration pdf
by Paolo Sommaggio, Marco Mazzocca, Alessio Gerola, Fulvio Ferro
BioLaw Journal – Rivista di BioDiritto, n. 3/2017
ABSTRACT: This paper discusses the emerging debate concerning the concept of Cogni-
tive Liberty and its connection with human rights. Therefore, considering how recent
developments of neurosciences are granting us an increasing ability to monitor and
influence mental processes, this article aims to provide a clear definition of Cognitive
Liberty understood as a necessary condition to all other freedoms that cannot be re-
duced to existing rights. In this regard, after presenting the most important positions
on the issue, we introduce our point of view, according to which Cognitive Liberty al-
lows us to lay the groundwork for building new neuro-related Human Rights.
KEYWORDS: Cognitive liberty; cognitive enhancement; neuroscience; neurolaw; human
rights
SUMMARY: 1. Introduction – 2. The neuro-technologies – 3. Cognitive Liberty: in search of a definition – 4. Cogni-
tive Liberty: negative formulation – 5. Cognitive Liberty: positive formulation – 6. Cognitive Liberty and Human
Rights – 7. The debate: the conception of Bublitz – 8. The debate: the conception of Ienca and Andorno – 9.
Conclusion – 10. References.
1. Introduction
In the novel “The Emerald city of Oz” L. Frank Baum imagines the existence of particular pills
taken by professor Wogglebug’s students to acquire notions of Algebra, Geography and Latin,
in order to avoid regular school attendance and allow them to have more free time for sports
and recreational activities.1
At the present time, this is no longer just a fantasy fiction. Neuroscientists, indeed, claim to take the
place of the well-known fantasy character through the use of neuroscience and neuro-technologies.
This is because, recent studies on the relations between the structure of the brain (and the nervous
system) and human knowledge led to develop techniques for monitoring (and influencing) brain ac-
tivity, allowing them to affect reasoning, to alter emotions or memory, and to enhance cognition.
However, one should note that these techniques seem to have a sort of double face. On the one side,
they increase the risk for the security and the privacy of what is in our brain; on the other side, they
represent an amazing opportunity to augment our brain potential.
This is not an issue to be addressed in terms of “mind ownership”, since such terminology represents
an incorrect use of a legal category. Rather, it seems to be necessary to analyse the concept of Cogni-
tive Liberty (CL), as coined by American civil rights activists.
This is a concept that, according to Richard Boire and Wrye Sententia’s opinions, is something similar
to a wall to protect the individual from the claims of any other person2. Indeed, as they highlighted in
many of their essays, Cognitive Liberty is the right to control one’s own mind: the basic brick of per-
sonal freedom. In the last decade, this concept became a slogan in support of various civil rights
struggles: among the others, the claims against non-voluntary interference and forced psychiatry or
for decriminalisation of psycho-active substances.
Nowadays, Cognitive Liberty is a complex and central concept in the relationship between neuro-
technologies and the internal sphere of every person. The problem, however, is the lack of a theoret-
ical framework of negative intervention in other minds and, at the same time, the lack of positive
self-determined alterations on/to one’s own mind.
This is the reason why, after providing a general definition of Cognitive Liberty (as well as its positive
and negative aspects) we will introduce the problem of the relationship between CL and Human
rights: the former concept, in fact, has been considered since the beginning as a potential human
right. Indeed, according to Boire, «As we frantically race into the third millennium, with micropro-
cessors becoming faster, cheaper, and smaller, with surveillance cameras proliferating in public spac-
es, with the human genome program about to issue its first ‘working draft’ of the human DNA se-
quence, and with an out-of-control Frankensteinian machine named the War on Drugs, all awhirl in
the ocean of modern day culture, it is imperative that we, as a society, expressly acknowledge the
fundamental human right to cognitive liberty and immediately begin to define its contours»3.
Therefore, the aim of this paper is to analyse if CL may be considered as a new human right or as the
preliminary condition to think about all human rights. Consequently, we will firstly review the main
positions in the current debate about this issue and, then we will introduce our point of view, accord-
ing to which CL plays a pivotal role allowing us to think about all new neuro-related human rights. In-
deed, only thinking about the CL features we are able to build a serious framework of the other neu-
ro-rights able to lead us to a new Declaration of Human Neuro-Rights with which, we hope, we can
reach an agreement with every author involved in the study of Cognitive Liberty. In this paper we
present some steps useful in building a sort of a stairway to reach a Declaration of Human Neuro-
Rights.
2. The neuro-technologies
The advancement of neuro-technologies raises a number of philosophical, ethical and legal conun-
drums that are connected to issues such as personal identity, privacy, social justice and autonomy. In
this section we provide a brief overview of existing neuro-technologies and of the kind of questions
that their development and application pose.
a) Brain Imaging. The first set of neuro-technologies we consider are brain imaging techniques. The
main techniques employed for the purpose of brain monitoring and imaging include electroenceph-
alography (EEG) and functional magnetic resonance (fMRI). They provide structural and functional
information about the brain and its neural activity, that is used for diagnostic and research purpos-
es. Through fMRI, for example, neuroscientists are able to study the ways in which neurons fire up
and thus to correlate brain activity with mental activity, localizing the areas of the brain that re-
spond to certain stimuli, like pain or language recognition. This information provides a clearer un-
derstanding of the way in which the brain works and how it supports our thoughts. However, the
correlation between psychological traits and their neural basis is still not perfectly understood, and
fMRI can only provide indirect access to neural activity through the measurement of changing blood
flow associated with it. The accuracy with which these are matched is, therefore, still considerably
limited, and although further developments may pose severe challenges in the future that we ought
to be ready to address, no considerable threat to privacy seems to be in place at the current state of
the art4. At any rate, the impact of the social influence of neuroscientific information should not be
underestimated. Excessive hype in the results of brain imaging techniques can thus lead to a blind
trust in its predictive power. The appearance of objectivity and authority that brain images carry
may lead people to misinterpret them as more predictive than they really are. The simple presence
of neural information, real or fake, is enough to make a certain piece of information appears as
more authoritative and credible5. For example, the widespread belief that a socially reprehensible
trait, say paedophilia, is associated with a precise neural correlate, might lead to the stigmatization
and discrimination against individuals that are discovered to possess such neural characteristics,
even in the absence of associated psychological evidence. An area in which neuroscientific studies
based on brain imaging are applied to address real world cases is, for example, neuro-marketing. Its
goal is to collect neural information concerning decision-making processes by measuring the cus-
tomers’ response to an advertisement, in order to test its effectiveness. Neuro-marketing could thus
lead to the infringement of the decisional autonomy of the individual, if it enabled companies to hi-
jack customers’ choices that bypass their level of awareness. With current technology and level of
understanding, however, it is not possible to manipulate customers’ behaviour in such a way that
the target does not realize the attempt to nudge him or her6. Nonetheless, there might be more ef-
fective ways to alter customers’ behaviour, as we will see shortly.
Brain Stimulation. The next set of technologies comprises neuro-stimulation ones: they offer treat-
ments based on electrical and magnetic stimulation of the brain through medical devices fixed on
the head or implanted into the brain. Transcranial Magnetic Stimulation (TMS) and Deep Brain
Stimulation (DBS) currently have widespread applications for the mitigation of the symptoms of
neurological and psychiatric disorders like Parkinson’s disease, epilepsy and depression7. Among the
various issues that these technologies raise, we are particularly interested in the ways brain stimula-
tion alters the patient’s personality and identity. Although evidence about the psychological effects
of these kinds of treatments is conflicting, numerous studies report various degrees and types of al-
terations, depending on the mode, degree and area of stimulation8. Mood and personality changes
due to DPS for example comprise states of excitement and euphoria, impulsivity and a tendency to
obsessive disorders.9 These changes can be so radical as to pose a challenge to individuals to adapt
themselves to a new concept of themselves. It is hard, however, to determine whether such chang-
es are caused by the degree and area of stimulation, or by the attempt of psychological adaptation
to a new health status. Additionally, given the numerous different accounts of personal identity that
the literature offers, it is hard to tell how much an individual’s personality changed, and thus, to give
an indication of the degree of change of identity which the person underwent.
Brain Alterations. A third set of neuro-technologies comprises psychoactive drugs, which are known
to cause changes of personality too. Psychopharmacological agents such as methylphenidate (Ri-
talin), modafinil (Provigil), donepezil (Aricept), fluoxetine (Prozac) and amphetamines (Adderall) are
regularly employed to treat a wide array of conditions, like Attention Deficit Disorder (ADD), narco-
lepsy, Alzheimer’s disease, dementia and depression. Anyway, as side effects they may also enhance
mood, concentration, wakefulness, assertiveness and sociability10. Other substances have been
shown to cause the temporary alterations of human psychological traits. Oxytocin, for example, is
involved in a number of cases of pro social behaviour in mammals. The administration of oxytocin
increases social trust and risk-taking11, an aspect that may be used to treat patients that suffer from
social phobia or autism12, but might also be used to cheat or deceive somebody by decreasing their
level of suspicion. Additionally, it may also increases aggression, since oxytocin is involved in the ag-
gressive behaviour that mammals display when a mother defends her litter from a threat.13 Yet oth-
er psychopharmacological drugs are studied for their potential to affect memory, which may offer
treatments for people suffering from Mild Cognitive Impairment (MCI) and Post Traumatic Stress
Disorder (PTSD). Both memory formation and consolidation, and the emotional strength of memo-
ries can be altered in order to enhance or inhibit memory recollection. MCI can cause memory defi-
cits that could be remedied by strengthening the process of memory formation and consolidation.14
PTSD symptoms, on the other hand, can be alleviated by reducing the intensity of the emotions at-
tached to traumatic memories. At the current state of the art, these techniques cannot be used to
selectively modify people’s memories 15. In spite of this, future developments of memory modifica-
tion technologies raise issues concerning the continuity of personal identity due to the alteration of
memories that play a role in defining who we are. All these effects on one’s personality, due to
technological or pharmacological intervention in the brain, makes us question the authenticity of
the resulting behaviour, which again connects to the issue of identity change, as well as to personal
autonomy. How radical must a change be in order to count as a substantial alteration of personal
identity, and how much of it is due to the intervention? How “free” are the decisions of the person
after the treatment, and how does the self-perception of autonomy impact one’s perception of self-
worth? These questions will come back again in later parts.
Cognitive Enhancement. The last issue that will be taken in consideration here is the so called cogni-
tive enhancement. Both neuro-stimulation technologies and psychoactive drugs, in fact, can be used
to augment human cognitive capacities such as attention, focus and memory (but also mood, per-
sonality traits and behaviour)16. Although the majority of techniques and products are tested specif-
ically for the treatment of specific disorders, nootropic drugs (also called smart drugs) in particular
are regularly used off-label to obtain a boost during mental efforts, especially by students. Even
though the degree of the possible enhancement is at the present time limited, the issues that this
use of neuro-technologies raises are broad and challenging. Besides changes in personality and
identity as outlined above, cognitive enhancement could impact self-esteem, since it puts into ques-
tion the connection between our efforts and achievements17. Differences of accessibility due to, for
example, prohibitive costs for the poorer parts of society, could cause the exacerbation of the gap
between social classes18. The widespread use of cognitive enhancers might redefine what is consid-
ered “normal”, impacting personal and social identities on issues related to well-being and thus lead
to an increased medicalisation of traits once considered normal19. It may also cause direct and indi-
rect coercion and social pressure on people who refuse to use them and who might face marginali-
zation and penalization in competitive settings or in the workplace20. Lastly, their availability on the
market might foster the commodification of certain psychological traits considered desirable, which
would no longer be seen as a symbol of personal value but rather of status21.
Therefore, to sum up, the neuroscientific technologies promise to:
a) Be able to “read” the mind of people simply through brain scans.
b) Be able to change mood and personality
c) Be able to induce aggression or other behaviour modification
d) Be able to alter memory formation and consolidation
e) Be able to augment cognitive ability (or capacity)
These are the reasons why the field of neuro-ethical needs is bringing about the necessity of an ever
increasing consideration of social and ethical implications of neuro-technological discoveries22.
3. Cognitive Liberty: in search of a Definition
It is not simple to give a clear and exhaustive definition of Cognitive Liberty. Of course, it is a relative-
ly new term, since it was only in 2000 that W. Sententia and R. G. Boire introduced the word and the
concept of Cognitive Liberty in order to emphasise the role and resilience of individual thought in the
free usage of technologies at our disposal.
This is a term designed, on the one hand, to expand the traditional notion of “liberty of thought” and,
on the other hand, to push legal systems of democratic societies to integrate such a right into their
constitutions23.
In this context, it is important to highlight that the term ‘cognitive’ denotes the process an individual
uses to organize the information he receives, since the mind collects and selects information accord-
ing to perception, attention, comprehension and memory to guide the behaviour24.
Therefore, Cognitive Liberty is a very complex concept due to its multi-dimensional features.
Bublitz assumes that it may be considered as a principle that guarantees «the right to alter one’s
mental states with the help of neurotools as well as to refuse to do so» 25. Nevertheless, it is also de-
fined as the right of each individual to think autonomously and independently, to use the complete
set of their mental abilities and take part in several ways of thought. This latter definition, indeed,
expresses three conceptual points of interest:
• Privacy. The content of our thoughts must remain private until one decides to share them.
Therefore, according to Boire and Sententia, we can interpret the cognitive liberty with special
focus on the protection of individual freedom and self-determination from the State and other
subjects, but particularly from the State or commercial entities: a sort of protection from the
coercive and non-consensual use of neuro- technologies.
• Autonomy. Every human being must be able to think independently and use the full spectrum of
their mental faculties26. In this regard, Cognitive Liberty is something like a freedom to control
one’s own consciousness and electrochemical thought processes this is because it is the neces-
sary ontological substrate for just about every other freedom. Thus, now it is clear why Wrye
Sententia presented cognitive liberty as a conceptual update of freedom of thought that takes
«into account the power we now have, and increasingly will have to monitor and manipulate
cognitive function»27
• Choice. The capabilities of the human mind should not be limited. Until one person directly
damages others, governments should not prohibit cognitive enhancement or the realization of
any other mental state.
Therefore, since Cognitive Liberty ensures the possibility to control our own consciousness it should
allow us to avoid an attack from an economic corporation or from a coercive political legislation, or
even social orders to achieve a communal cognitive standard28.
Moreover, following the thesis of Bublitz, we think CL is not just a political claim, but something more
similar to a pre-condition of every legal concept related to a person, i.e. «the implicit assumption of
any legal order based on individual self-determination and responsibility»29. The importance of this
concept may be unearthed from the consideration that it is integral to the foundation of every legal
system. This is a crucial theme because self-determination regarding one’s own cognition is essential
for free will and for every kind of free action.
4. Cognitive Liberty: negative formulation
Conducts which aim to provoke damage (intense suffering or physical disabilities) and mental manip-
ulations (behavioural alterations or subliminal conditioning of choices and preferences) are often not
sufficiently prosecuted by national and international authorities. Thus, it is necessary to find a con-
ceptual framework that brings together all these conducts, in order to provide a stronger protection
from them. We think this concept may be the “negative” formulation of Cognitive Liberty: a defen-
sive concept against “mental” abuses from third parties like police, medical agencies, commercial en-
tities, or, indeed anyone, but the owner’s mind.
Boire’s paper Neurocops: The Politics of Prohibition and the Future of Enforcing Social Policy from In-
side the Body highlights the forced use of drugs and psychiatric treatment on prisoners without a
conscious and informed consent30.
On a regulatory level, in addition to physical integrity CL is also taken in consideration, even though
such an issue is only marginally considered in psychopharmacological treatments and in modern neu-
rosciences. As a matter of fact, there are no debates revolving around the correlation between indi-
vidual thought and cerebral neurochemistry. To avoid the erosion of liberty from the inside it is nec-
essary to acknowledge the integrity of the neurochemical processes submitted to the personality of
an individual. The essential features to make these interventions may require the fulfilment of two
requirements:
1) that a member of the healthcare staff trained in such subject must fully inform the individual
about treatment alternatives, about risks and benefits deriving from this therapy or about the
possibility of abstention from the cure;
2) the individual must also be able to decide freely and voluntarily if he intends to undergo the
treatment.
As a premise of this decision, the subject must have the power of free choice from undue incentives
or any other situation regarding deception, enforceability or constriction, fraud or any other form of
coercion or humiliation. This coercion, even if used to compassionate ends, like the imposition of
care, is still considered coercion. The only exception to the requirement of informed consent, besides
the emergence of possible harm to himself or others, is a statement of mental infirmity, even though
a clear definition of this condition on a medical or legal level has yet to be developed.
In the case Sell vs United States, other limits to the use of neuro-techniques are fixed.
These limits can be articulated in four points: 1) there must be a state public interest (such as, in the
present case, to subject a potentially hazardous subject to judgment); 2) medicines administered
must at the same time bring the subject to his senses and not cause unwanted effects; 3) the ac-
cused may not be subjected to alternative healthcare that may yield the same results; 4) the drug
should be administered in the best medical interests based on the subject’s health condition 31.
As a matter of fact, we believe that the danger of a forced, or of a too aggressive use of neuro-
technologies, can result not only in a new conception of punishment, but might have consequences
in those clefts of the legal orders where will is an element of secondary importance.
In many social orders, as is well known, public authorities can put forward medical interventions
completely regardless of the acceptance of those who undergo them; for example, involuntary
healthcare treatments. We believe that, over the next few years, this blind spot could represent a
picklock to test new forms of “normalisation” using neuro-techniques32.
In 2012, Hank Greely tried to open the debate on the use of involuntary treatments precisely for the
modification/elimination of antisocial behaviour, as well as for the treatment of diseases and of psy-
chic distress33. This scholar is one of those who consider it an immediate necessity to develop the ba-
sis of a direct intervention in the neuro-deviant brain, be it in criminals or simply people in psychic
distress.
He asserts the daring thesis that neurosciences will provide the ability to modify undesired behav-
iour, by changing the neurological basis of agent individuals. This reasoning is very simple: if we agree
that we are willing to intervene directly on the brain of a subject in case of severe disease or disa-
blement, there is no reason to disagree on the treatment of the causes, also ‘related to the brain’, of
socially undesired behaviour.
Greely proposes safety and effectiveness as standards to evaluate this kind of treatment. He asserts
that the traditional forms of direct brain intervention (ad example lobotomy) are unduly simplistic
solutions for a very complex problem, since they are neither safe nor effective34.
Therefore, it is necessary to test new forms of intervention, safe and effective, in order to eradicate
socially unaccepted behaviour through behaviour control, provided that the interventions are safe,
effective and not improper35.
For the purpose of suggesting an experimentation in this direction, Greely examines three types of
situations: the fully-voluntary possibility; the semi-voluntary choice between direct intervention and
an unappealing alternative (e.g. jail); and a third completely forced option.
Sure, at least in the first two cases the problem of the true character of a voluntary act could emerge
since the decision could come from the individual’s family or environment. However, Greely’s reply
consists of introducing an «extensive process to ensure that the offender had thought long and hard
about it, was competent, and was not acting in hope of early release» 36.
Secondly, according to Greely, it is necessary to consider the nature of the behaviour that one seeks
to modify. Let us think about a change of one’s shyness or aggressiveness or of one’s religiousness, or
to those who, for various reasons, want to become “someone else”.
As for the possible objection on the harm to human dignity caused by these interventions, Greely re-
plies: «but does a social consensus that a treatment offends human dignity justify forbidding compe-
tent adults from doing what they want to themselves, even if such a consensus could reliably be
found?»37.
In respect to the semi-voluntary choice, according to Greely it is necessary to consider the types of
alternatives proposed to the deviant individual. A court cannot offer the alternative between going
to jail or voting for a certain party, and neither between jail and torture. Therefore, it is necessary to
evaluate the appropriateness of the intervention, that is its character of interest in regard to the in-
dividual’s behaviour. Obviously, the alternative between jail and a safe and effective direct interven-
tion is certainly tempting and, from the author’s point of view, represents an appropriate proposal.
As to completely involuntary direct treatments, Greely wonders for which reason they should not be
proposed without alternatives (that is, imposed), if they comply with the safe-effective-not improper
requirements.
If we can serenely send someone to jail, unsuccessfully attempting to modify their behaviour, there is
no reason to fear the scandal caused by a certainly more effective modification concerning the brain.
The problem, we think, involves individual freedom, that is, the “resistibility” of traditional means
that leave residual autonomy to the subject. That is, that autonomy which the new means of direct
intervention would not leave.
In this regard, Greely also asserts the need to identify a space of unattainable “cognitive liberty”; a
sort of privacy level beyond which one should not go38. But, even given this sort of unattainability, it
is difficult to assert that direct brain intervention could not become a commonly used practice to
modify behaviour that is socially unfavourable or not accepted by the community, or vice versa to
ease accepted behaviour.
With regard to this issue, Martha Farah believes that possible interventions on central nervous sys-
tem, such as subcutaneous stimulators or neurosurgical operations, should not be used in any cir-
cumstances to subjugate the interests of an individual to the interests of society, because they com-
mit a clear violation of the right to human dignity. To each convict must be granted the right to keep
his thought and his personality away from any kind of intervention aimed at damaging individual lib-
erty. The possible submission to permanent interventions as an alternative to imprisonment, inte-
grates in any case an implicit coercion to the individual will39.
Such instances of protection also emerge in the debate about the negative contribution given by
neuroscientific innovations to the privilege of non-self-incrimination during an investigation or dis-
pute. This privilege protects the defendant from being forced to sue by affirming facts from which his
responsibility may arise (in the United States this possibility is governed by the V Amendments to the
Constitution). However, it does not yet offer protection from possible coercive analysis of its mental
processes. The problem presents itself mainly when data obtained from brain scans, such as fMRIs,
are not only treated as information on the individual, but as true testimonies for non-intervention of
the right to self-incrimination 40.
As a result, Nita Farahany proposed the idea of the possible creation by the US Congress of a law on
the Non-Discrimination of Genetic Information to protect individual Cognitive Liberty, interpreted as
the right to privacy against mental processing41. We think this is a good way to go ahead in the de-
fence of personal neuro-sphere: using the analogy with the international declarations that protect
the Human Genome.
5. Cognitive Liberty: positive formulation Cognitive Liberty and Human Rights
As we have seen, «Negative rights are those rights that impose obligations on governments and oth-
ers citizens to refrain from interfering with the rights bearer» 42. By contrast, the positive formulation
of Cognitive Liberty argues that the existing neuro-technologies should be widely available to anyone
who wants them.
The main cases on this theme concern the free personal use of psychoactive substances and cogni-
tive devices (such as Transcranial Direct Current Stimulator or Neuro Feedback Equipment43) which
may lead to a cognitive enhancement, even if the concept of enhancement may be related both to a
hypothetical individual level (such as, for instance, the increase of one’s own memory) and to a hypo-
thetical general level (such as, for instance, the drug treatment in academic exams)44. However, if, on
the one hand, the use of such “treatments” may be considered ethically permissible by society, on
the other hand, the limited evidence regarding their efficacy and the potential safety problems in the
long term might suggest being careful with their use. This dichotomy is also the basic foundations on
which the transhumanist and bio-conservative debate is built. In fact, while the aim of the formers is
to «create the opportunity to live much longer and healthier lives, to enhance our memory and other
intellectual faculties, to refine our emotional experiences and increase our subjective sense of well-
being, and generally to achieve a greater degree of control over our own lives» 45, the others argued
that the «use of CE could have profound and unpredictable consequences for society because it
could allow people to create cognitive structures of a type that do not occur within the range of
normal human experience» 46.
And this is precisely the point: today a shared concept of “normality” has still not been elaborated.
Indeed, according to Sommaggio «In the neuro-scientific context, there are at least two formulae re-
ferring to normality: the statistical model, based on the observation of uniformity of behaviour, and
the socio-biological, or evolutionary, model» 47. Nevertheless, both conceptions may be questioned.
The first one by the fact that empirical observation suffers from the statistical syndrome: the bell-
curve, namely a standardised data distribution, such as that where for each genius there can be an
idiot, with the resulting defeat of any normality definition. The second one may be criticized by the
fact that it leads to a blind alley: we are unable to identify the reasons why certain behaviour may
have consisted of a “bad” or “good” adaptation to social-environment.
Furthermore, even if we assume a libertarian point of view, nonetheless a criticism of cognitive en-
hancement can be put forward. Indeed, the wealthy will have access to CE while the poor will not,
thus resulting in wider disparities in society, since it represents a potentially huge market, not only
for drug companies but also for physicians who might enter the potentially lucrative market, espe-
cially of cosmetic neurology48.
Moreover, some scholars wondered whether the availability of enhancers might not create profes-
sional duties for individuals in high-risk professions, such as surgeons or pilots, to utilize them (even
though, at present, since there is a reasonable doubt about their efficacy and their possible negative
effects, it is possible to conclude that such a legal duty cannot be imposed)49. This is because some
safe and effective medications for therapeutic uses can be extremely dangerous outside the prescrip-
tion. In this regard, specific studies are required to assess risks and benefits of cognitive enhance-
ment. At least a guideline on their use should be traced taking into account the possible long-term
repercussions of the side effects of these technologies. This is the reason why some researchers, in
an article published in Nature, proposed the creation of a Committee of doctors, educators and law-
yers to collaborate in the development of policies aimed at defining the criteria for the use of cogni-
tive enhancers in healthy subjects50. In this sense, we may wonder if State legislatives should or
should not intervene to prevent the actions of those who want to use such enhancers.
This is what happened, for instance, with regard to the doctor-child-parent relationship. Indeed, due
to the vulnerability of children to various forms of coercion, the ANN Committee Ethics, Law, and
Humanities Committee Position Paper concluded that prescribing stimulants for enhancement with-
out diagnosis of a neurologic disorder is unjustified in legally and developmentally non-autonomous
children and inadvisable for near-autonomous adolescents51.
Obviously, there are many arguments in favour of the use of cognitive potentials legitimated by the
right to autonomously determine our own identity and conscience. The aforementioned model could
then lead to a recognition of the possibility to modify the cognitive sphere with enhancing tools, up
to the consideration of the free management of our mind as a fundamental human right52.
6. Cognitive Liberty and Human Rights
As we saw, neuro-technology has the potential to impact and redefine legal systems even though, up
to now, international human rights law does not make any reference to neuroscience. From a broad-
er point of view, we can say that neuro-technologies have the potential to redefine the very concep-
tion of our global society. Indeed, they can influence everyone since they are able to modify the cog-
nitive inner structure of every human being, thus raising issues related to human rights.
We do not want to start a debate about the foundation of human rights since, in this paper, we pre-
fer to use the conception of human rights defined by Beitz53. He considers human rights as «require-
ments whose object is to protect urgent individual interests against predictable dangerous (‘standard
treats’) to which they are vulnerable under typical circumstance of life in a modern world order com-
posed of states»54. We think cognitive liberty has all the features required by Beitz. In our opinion, CL
can be conceived as a requirement to protect the mind’s self-determination against the intervention
of other subjects (or the State) and this element is a common core of the whole world.
The same consideration may be used to circumvent the so-called “rights inflation” that is the tradi-
tional objection against the recognition ore the creation of new human rights. We could use a justifi-
catory test for these new kinds of rights to test if they are proper human rights. We think that no one
could deny that CL does not only deal with a very important asset but also responds to a common
and serious threat to that asset. On the other hand, no one is able to impose burdens on its practice
or to deny its feasibility in most of Countries. This may be considered as the Nickel test55.
7. The debate: the conception of Bublitz
It is not easy to describe the debate that Cognitive Liberty has brought into the human rights per-
spective. This is because, given the particular complexity of the definition of CL, it is difficult for
scholars to associate that definition with one or more human rights. In this sense, some of the most
valuable attempts were made by Jan Christoph Bublitz.
The reconstruction of this German author’s thought is not easy, given the continuous progress of his
point of view. However, it seems that something in his conception of cognitive liberty has never
changed (lasted unchanged): mind-body differentiation. Indeed, throughout his works, it is possible
to see how often the author focuses on how, «while legal systems have developed detailed rules of
permissible behaviour with bodies, [..] legal doctrines over conduct with another’s mind are hard to
find and strikingly underdeveloped»56.
It is, indeed, a distinction that leads other authors to address not only the question of the relation-
ship between body and mind, but especially that of the relationship between mind and brain. This is
because, despite the «current trend in psychiatry to relabel all mental disorders as brain disorder» 57,
this does not mean that properties of one automatically become properties of the other and, at least
for normative purposes which, involving concepts such as ‘‘harm’’ or ‘‘dysfunction’’, both mental and
the physical (brain) level merit attention on their own58.
This is the reason why they «claim that a human right to mental self-determination does exist or is,
as a tacit assumption, woven into the law’s structure»59.
The purpose of this right would be twofold: on the one hand, in «its negative dimension, it protects
the freedom from severe interference by the state and third parties»60. On the other hand, in its pos-
itive dimension, it grants the freedom to self-determine one’s inner sphere.
Unfortunately, as many authors pointed out, the «problem is that such a right is unfortunately nei-
ther expressly acknowledged by Constitutions or Human Rights Treaties nor given much attention by
legal scholars» 61. Nevertheless, since the «legal subject is the aggregate of its mental faculties, be-
havioural dispositions, emotional propensities and so on» 62, it is possible to consider Cognitive Liber-
ty not just as a right granted (or denied) by legal orders but as the basic assumptions on which liberal
legal orders are built.
This change in perspective is not without normative consequences. In fact, «while some interests are
protected by some strong rights, others may not enjoy any legal protection at all» 63, even if, as men-
tioned, some of these interests are the basis on which many of the rights are based.
In this sense, the case of Cognitive Liberty is emblematic. In fact, even if «Cognitive Liberty or a right
to mental self determination guarantees individual sovereignty over their mind […], such a right is
not enshrined in constitutions, human-rights treaties or legal textbooks» 64. Sure, many Western de-
mocracies protect mental injuries as body injuries. However, «legal protection of the mind cannot be
identical to the protection of the body, but requires distinct and yet-to-be worked-out criteria»65.
Of course, even now, according to Bublitz, it is possible to observe the presence of some rights such
as:
• the freedom of thought
• the right to a free development of personality
• the rights of Privacy
• the right to mental Integrity
which are in the proximity of Cognitive Liberty, understood as the rights to mental self- determina-
tion.
Nevertheless, it is the same author who, by analysing the different dimensions of this conception of
CL, specifies how this can be understood as:
• liberty to change one’s mind
• protection against intervention into other mind to preserve mental integrity
• an obligation for states to promote the cognitive liberty
Anyway, we would like to emphasise how, in a subsequent work, the perspective of the German
scholar changes and moves from a concept of Cognitive Liberty understood as mind self-
determination (strongly connected to the concept of mind integrity) to a concept of CL understood as
Freedom of Thought.
The change of perspective seems to be related to the «advent of tools that confer more powers over
our own and other’s mental»66. So that, «the question is no longer, whether it is possible to change
thoughts, but rather, who should be allowed to do so» 67.
To identify Cognitive Liberty with freedom of thought allows the author to no longer claim the exist-
ence of a human right to mental self-determination, but simply insert new meanings into an existing
human right. But this new point of view forces the author to admit the practical irrelevance of this
right.
Indeed, despite, «at least in theory, a strong human right protects persons against unwanted inter-
ventions into their minds […] Freedom of thought has failed to stand the test of practical applicabil-
ity»68. Even in this case, however, it should be noted how this notion of Cognitive Liberty seems to
be a prerequisite of Legal systems rather than a right protected by them.
This might be the reason why, recently, starting from considerations regarding moral bio-
enhancement (MBE), i.e. interventions «focussed on improving the moral aspects of the psychologi-
cal conditio humana through bio-technological means such as pharmaceuticals or electrostimulation
of the brain»69, Bublitz describes the following three different types of freedom which could be en-
dangered by this type of intervention.
1. Freedom to Fall. On a first reading, it refers to the freedom to act in a morally incorrect way.
However, no idea of freedom permits persons to fall — and fail — in, for instance, a criminal act,
because everyone is obliged to refrain from committing those acts. Therefore, as written by
DeGrazia «the elimination of freedom [to fall] with respect to rape and child molestation is no
great loss»70.
2. Freedom of Will. This is an important freedom since «MBE may not only curb the freedom of ac-
tion – after all, enhanced persons can act as they please – but rather the freedom to choose
which actions to pursue» 71.
3. Freedom of Mind. The notion of this freedom «has not received much scholarly attention, alt-
hough it should be accorded a central role in ethical assessments of mind-interventions» 72. At
first approximation, it has at least two important aspects:
1. «First, freedom of mind relates to the degree of independence from internal impediments
and to the strength of one’s mental capacities, from attention and memory to various types
of thinking or subduing impulses. In other words, one aspect of mental freedom is conscious
control over one’s mind» 73.
2. A «second, and this time a negative sense of mental freedom: to remain untouched from in-
terventions tampering with consciously uncontrollable mental elements — we can call this
the protection of peace of mind» 74.
Therefore, «although the notions mental freedom, conscious control and mental integrity may need
further explication, it is hardly disputable that MBE often interferes with aspects that they describe»
75.
In this respect, one should note that it is possible to change another’s opinions even with a mere
speech. For this reason, interfering with opinions cannot be intrinsically unlawful. Even if it is neces-
sary to specify that «direct and indirect interventions differ significantly in terms of respect of the af-
fected person. Indirect interventions engage with the other’s first-person perspective, with her
views, desires and personality, whereas direct interventions bypass her conscious and unconscious
control capacities» 76. Therefore, at least with regard of Freedom of Mind (in positive and negative
terms) Bublitz claims a normative intervention.
It is not easy, thus, to follow the path traced by the German scholar. Indeed, given the concrete pos-
sibility of altering the mind of others, he tries to find regulatory references that will achieve all the
goals promised by new technologies. To do this he explored many possibilities; from the recognition
of a right to mind self-determination (strongly connected to the concept of mind integrity), to a kind
of extensive interpretation of the right to freedom of thought, up to the explicit request for the
recognition of all profiles linked to Freedom of Mind.
Nevertheless, even though he truly explores the problems related to Cognitive Liberty, in our opinion
the suggested solution proposed by Bublitz seems unfit to solve all of the problems we try to investi-
gate in this paper. In our opinion, the best solution is not a modification, or an extension of existing
rights, but rather a completely new perspective on Neuro-Rights architecture.
8. The debate: the conception of Ienca and Andorno
Similarly, in the examination led by Ienca and Andorno, the focus is the refusal of the coercive use of
neuro-technologies and the development of the legal category of Cognitive Liberty, which must be
supported by the reconceptualization of existing human rights or the introduction of new human
rights:
– the right to cognitive liberty;
– the right to mental privacy;
– the right to mental integrity;
– the right to psychological continuity.
These authors argued that: «For the purposes of our analysis, in this article we will focus exclusively
on the negative formulation of the right to cognitive liberty, namely as the right to refuse coercive
uses of neuro-technology. In addition, while we welcome the introduction of the right to cognitive
liberty, we argue that this notion is not alone sufficient to cover the entire spectrum of ethical and
legal implications associated with neuro-technology. Rather, the establishment of cognitive liberty as
a human right should be coordinated with a simultaneous reconceptualization of existing rights or
even the creation of other new neuro-specific rights. This is the right to mental privacy, the right to
mental integrity and the right to psychological continuity» 77.
In consideration of the first point, the question is whether actual standards of privacy protection in-
clude the information incorporated or generated by our mind 78.
The authors suggest the extension of the category with the formal recognition of the right to mental
privacy, which is intended to protect any information, conscious or unconscious, deriving from the
brain (and also to protect the brain structures that give rise to these data) and which can be illegally
recorded by a dedicated neural instrumentation and indiscriminately shared in the digital ether. An-
other problem is that related to attacks on the brain by criminal groups. They can directly manipulate
mental capabilities, and the resulting mental integrity, through the use of neurological devices, the
same way computer hackers do.
As everyone knows, physical and psychological integrity is currently safeguarded by Article 3 of the
European Charter of Human Rights which emphasises the right in medicine and biology79. Mental in-
tegrity should both ensure that patients with mental health issues can easily access psychiatric
treatments and supports, and protect the mental dimension from possible harm by others. This re-
consideration of mental integrity should lead to specific regulatory protection from possible neuro-
chemical interventions designed to irreversibly modify individual personality with direct cognitive
impairment.
The right to psychological continuity would be a specification of neural nature regarding the right to
personal identity developed by the European Court of Human Rights on the basis of Article 8 of the
European Convention on Human Rights and recognized by the Universal Declaration of Human
Rights. Here, the right to personal fulfilment and the full development of personality is explained in
Art. 22 and 29. In any case the utmost attention and public debates are imperative before authoris-
ing intentional intrusions into the personal sphere 80.
Finally, Ienca & Andorno argue that: «All these proposed neuro-focused rights are mutually linked
and stand in an intimate family relationship. Being the substrate of all other freedoms, cognitive lib-
erty in its positive sense is a prerequisite of all other neuro-focused rights. As such, it is to mental pri-
vacy, mental integrity and psychological continuity in a very similar relationship as freedom of
thought is to privacy, integrity and identity rights. However, in its negative sense of protection from
coercive use, cognitive liberty can only partly account for the unintended uses of emerging neuro-
technology. In fact, illicit intrusions into a person’s mental privacy may not necessarily involve coer-
cion, as they could be performed under the threshold of a person’s conscious experience. The same
goes for actions involving harm to a person’s mental life or unauthorized modifications of a person’s
psychological continuity, which are also facilitated by the ability of emerging neuro-technologies to
intervene into a person’s neural processing in absence of the person’s awareness» 81.
Therefore, in the opinion of Ienca and Andorno, Cognitive Liberty is a prerequisite of all the rights fo-
cused on neuro aspects. We think that in order to take further their perspective the better approach
is to leave the idea to the introduction of a new neuro-oriented right into the current declarations of
Human Rights in order to focus on a totally new Declaration of Human Neuro-rights.
9. Conclusions
In conclusion, we think we have shown the pivotal role that CL plays in the new neuro-oriented soci-
ety. In doing this, we have presented some steps useful to build a sort of a metaphorical stairway.
As a first step we described importance and features of the concept of Cognitive Liberty understood
as a necessary condition to all other liberties, since it is their neuro-cognitive substrate.
As a second step, we reported how other proponents of Cognitive Liberty, suggest considering it as a
fundamental human right as well as a central legal principle guiding the regulation of neuro-
technologies. In this regard, one should remember, as Bublitz argued, how «hard it is to conceive of
any conception of a legal subject in which the mind and mental capacities (e.g. acting from reasons,
deliberation) are not among its necessary constitutive conditions» 82.
Subsequently, as a third step, we argued how Cognitive Liberty has all the features needed to make it
a key concept from which new human rights can emerge. This is because, it cannot just be reduced
to existing rights. But, it may be considered as a basis of all liberties, both internal and external. In-
deed, since Cognitive Life, in its various forms and degrees, is inherent to all human beings, so cogni-
tive liberty is consistent with a definition of human rights as inalienable rights «to which a person is
inherently entitled simply because she or he is a human being» 83, regardless of their nation, location,
language, religion, ethnic origin or any other status.
As a fourth step we saw how the integration of Cognitive Liberty into the human rights framework
would enable the protection of constitutive features of human beings that are not being entirely pro-
tected by existing rights.
As a fifth step, we have shown how this conception of CL could be understood both as a new human
right and as a necessary condition to build a set of new Neuro-Rights. In fact, in the same way as
what happened with the notion of Human Genome, we claim a Universal Declaration on Neuro-
Rights. This is because, the adaptive ability that human rights law has already shown may be a useful
tool in responding to the challenges posed by neurosciences. The path is already mapped out and it
is like a stairway.
Therefore, contrary to what is written by Bublitz and Andorno-Ienca, we think that it is not only pref-
erable and fair, but it would also be easier solve the problems related the concept of Cognitive Liber-
ty through a new Declaration of Human Neuro-Rights; as the path that has already be traced with re-
gard to the Human Genome.
In this paper, we intended to consider these steps as parts of a metaphorical stairway to national and
international protection of the inner sphere of every human being. In this sense, Cognitive Liberty
will be the key concept for a new kind of ‘habeas corpus’: a recourse in law through which a person
can report on unlawful intervention into her or his inner world. That is a new ‘habeas mens’ that
would mean “my mind is free”. Free from interventions of others, and free to change our mind as we
choose. To sum up, we ask for the go-ahead of the legal recognition of the neuro-cognitive issues in a
defensive and proactive sense. We do not mind what form these neuro-rights will take. We are inter-
esting in unearthing this problem and in putting Cognitive Liberty at the centre of this conceptual
turning point of our future international society.
Paolo Sommaggio: Associate Professor, Faculty of Law, University of Trento, Trento, Italy. Email: pao-
[email protected]; Marco Mazzocca: Ph.D. Candidate, Department of Public, International, and Communi-
ty Law, University of Padua, Padua, Italy. Email: [email protected]; Alessio Gerola: Postgraduate
Student, Department of Philosophy, University of Twente, Enschede, Netherlands. Email:
[email protected]; Fulvio Ferro: Undergraduate Student, Faculty of Law, University of Trento, Tren-
to, Italy. Email: [email protected]. The article was subject to a double blind peer review process.
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58 Therefore, in this regard, «Speaking of depression, for instance, is speaking about specific mental symptoms.
Whether a person suffers from depression solely depends on her exhibiting these symptoms. Even if we knew
(what we currently don’t) that every instance of depression strongly correlates with chemical ‘‘imbalances’’ in
neurotransmitter levels (say Serotonin) » Ivi., p. 57.
59 Ivi, p. 60.
60 Ibid.
61 Ibid.
62 Ivi., p. 62.
63 J.C. BUBLITZ, My Mind is Mine?! Cognitive Liberty as a Legal Concept, cit., p. 237.
64 Ivi. p. 242.
65 Ibid.
66 J.C. BUBLITZ, Cognitive Liberty or the International Human Right to Freedom of Thought, cit., p. 1312
67 Ibid.
68 Ivi, p. 1318
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72 Ivi, p. 94.
73 Ivi, p. 95.
74 Ivi, p. 97.
75 Ivi, p. 98.
76 Ivi, p. 99.
77 M. IENCA and R. ANDORNO, Towards new human rights in the age of neuroscience and neurotechnology, cit., p.
11.
78 In this regard, a possible protection is provided by the European Convention on Human Rights in Article 8,
which recognizes the right to respect family life, domicile and correspondence. Indeed, as set out in its second
paragraph «There shall be no interference by a public authority with the exercise of this right except such as is
in accordance with the law and is necessary in a democratic society in the interests of national security, public
safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others».
79 However, it is necessary to recognize that the rights of the Charter apply only to the institutions, agencies
and bodies of the Union respecting the principle of subsidiarity as well as to Member States in the implementa-
tion of Union law, as stated in art. 51.
80 Cf. M. IENCA and R. ANDORNO, Towards new human rights in the age of neuroscience and neurotechnology, cit.,
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81 Ivi, p. 24.
82 J.C. BUBLITZ, My Mind is Mine?! Cognitive Liberty as a Legal Concept, cit., p. 242.
83 M. SEPULVEDA, et al., Human Rights Reference Handbook, Ciudad Colon, 2004, p. 3.