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This paper adresses the ethical concept of objectification, and relates it to practices in psychiatry, especially those that are centered around the view that the neurobiological level is somehow prior, both in explaining and treating mental disorders. Apart from epistemic problems, such a view stands in tension to the ethical demand to not-objectify other persons. The big question is whether such an ethical idea can be upheld in light of the progresses of neuroscience. The paper argues that it can - and suggests taking it more seriously.
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With a reply by Prof Michalowski. No preprint yet.
Zum Spannungsverhältnis Strafverfahren - Glaubhaftigkeitsbegutachtung - Psychotherapie.
(Ausgezeichnet mit dem Nachwuchspreis der AEM 2019)
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This paper provides an in-depth legal analysis of the famous "hungry judge study" by Shai Danziger & colleagues, "Extraneous factors in judicial decisions", PNAS 2011. It found that the decisions of an Israeli Parole Board varied considerably during the course of the day, with strong effects of meal breaks. I argue that contrary to first impression, it is not evident that a large share of the decisions in the study are indeed incorrect. However, the study highlights the problem of "inconsistent judging" in a diverse judiciary.
This paper adresses several issues related to the idea of personhood that Brain-Computer-Interfaces pose. It is the outcome of an interdisciplinary deliberative workshop held by Eric Racine & Matthew Sample at the IRCM Montreal.
OA paper is here
Fulltext here: Open Access
The promise of neurobiological interventions that afford improving pro-social behavior is particularly interesting for criminal justice systems. After all, rehabilitation of offenders is one of their central objectives. This raises the question whether states can deploy such means to rehabilitate offenders against the latters’ will, as part of – or instead of – punishment. Some advocates of compulsory treatments of offenders consider them more humane (and effective) than current forms of hard treatment such as incarceration. This chapter critically engages with suggestions to treat legally competent offenders for rehabilitative purposes against their will by emphasizing two aspects: First, strong human rights of offenders – summarily the right to mental self-determination – oppose mandatory interventions into criminogenic psychological states or processes. These human rights are not (yet) recognized in every jurisdiction, but emerge from general liberal and democratic principles most western jurisdictions endorse. Secondly, the case for mandatory rehabilitation is weaker than it may appear at first glance because it is anything but clear that and why the penological aim of rehabilitation justifies severe interferences of offenders’ rights. In any case, it seems that states could attain their legitimate forward-looking aims – preventing recidivism – by less restrictive means such incapacitation. Thus, compulsory rehabilitation may only be justified in exceptional cases. Rather, offenders should be offered a choice between neuro-rehabilitation and detention.
Please note the Erratum
The controversy over moral bioenhancement has fallen into a stalemate between advocates and critics. We wish to overcome this stalemate by addressing some of the key challenges any moral enhancement project has to meet. In particular, we shall argue that current proposals are unpersuasive as they, first, fail to diagnose the often complex causes of contemporary moral maladies and, second, are premised on methodological individualism. Focusing on brains and minds neglects social and environmental factors. Solving the mega-problems of today very likely requires more than transforming individual brains, it requires structural and higher-level changes. By itself, moral bioenhancement is thus insufficient for solving these problems. Moreover, we outline some of the yet unresolved problems of (democratic) legitimacy a mandatory state-run bioenhancement project faces and show why they cannot be defused through analogies with moral education. Finally, normatively less worrisome means of enhancing morality, such as psychotherapies affording self-exploration, are already available. Moral bioenhancement may thus not even be necessary for solving today’s mega problems. The overemphasis on speculative future technological fixes may cloud the view on possibilities to tackle pressing problems instantly.
What should we do if climate change or global injustice require radical policy changes not supported by the majority of citizens? And what if science shows that the lacking support is largely due to shortcomings in citizens’ individual psychology such as cognitive biases that lead to temporal and geographical parochialism? Could then a plausible case for enhancing the morality of the electorate—even against their will –be made? But can a democratic government manipulate the will of the people without losing democratic legitimacy? This paper explores the problems that governmental manipulation of voters pose for democratic legitimacy and the tensions between non-manipulated input and morally acceptable output. These venerable issues of political theory resurface in light of recent suggestions to tackle today’s global mega-problems by Ingmar Persson and Julian Savulescu. They suggest that to avert the looming catastrophe, governments should alter psychological traits of the citizenry through biomedical means, from pharmaceuticals to genetics. However, we argue that a government cannot rule with democratic legitimacy if elected by a will of the people it manipulated before. Normatively, conferring power from the governed onto governors is a one-directional relation that is incompatible with manipulation. But while it is tempting to rebut suggestions to morally enhance the people as antithetical to essential ideas of democracy, swift rebuttals tend to overlook the deeper challenge: Majoritarian decision-making may lead to inacceptable outcomes. The dilemma between input and output runs through major works in political theory. Rather than wishfully ignoring the dangers of democracy, democratic theory has to provide answers.
Magnus/Bublitz/Repantis (2015). Ärztliche Strafbarkeitsrisiken beim Verschreiben von Arzneimitteln für
medizinisch nicht indizierte lifestyle Zwecke. MedStra 4/2015, 205-214.
The neurosciences not only challenge assumptions about the mind’s place in the natural world but also urge us to reconsider its role in the normative world. Based on mind-brain dualism, the law affords only one-sided protection: it systematically protects bodies and brains, but only fragmentarily minds and mental states. The fundamental question, in what ways people may legitimately change mental states of others, is largely unexplored in legal thinking. With novel technologies to both intervene into minds and detect mental activity, the law should, we suggest, introduce stand alone protection for the inner sphere of persons. We shall address some metaphysical questions concerning physical and mental harm and demonstrate gaps in current doctrines, especially in regard to manipulative interferences with decision-making processes. We then outline some reasons for the law to recognize a human right to mental liberty and propose elements of a novel criminal offence proscribing severe interventions into other minds
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This chapter provides an overview over the international human right to freedom of thought.
Neuroscience might develop interventions that afford editing or erasing memo-ries, changing their content or attenuating accompanying emotions. This sectionprovides an introduction to the intriguing ethical and legal questions raised by such alterations, with a special focus on the report by the President’s Council “Beyond Therapy” and the proposal of a right to freedom of memory advancedby Adam Kolber.
This paper reconstructs the human right to freedom of thought and proposes four principles for its understanding.
This paper adresses the controversy around manipulation cases in the free will debate, one of the central arguments. It contrasts legal and philosophical approaches to the issue with the aim to inform each side about the often deep discussions in the other discipline.
This paper reviewed a landmark decision by the German Constitutional Court, barring the use of coercive medications in psychiatry. New laws pursuant to the demands of the Court have been passed subsequently.
This was the first larger treatment on the protection of the human mind in German law.
This paper deals with issues of performance enhancing drugs in university exams, with a particular view on German law and the right to equality.
This was a quite succesful paper that adressed the issue of authenticity in the context of personality-altering drugs. It mainly focused on notions of authenticity found in the contemporary autonomy debate.
My first paper, on the question of damages in fraud by omissions. The opinion has later been taken up by the Bundesgerichtshof.