Academic journal article
By O'Connell, Karen
The Australian Feminist Law Journal , Vol. 37
A brain-based subject of law is emerging, in which neurological processes become a primary means of defining individual choice, behaviour, capacity and responsibility. This paper considers the impact of such a shift in legal subjectivity on feminist engagement with law. A reductionist take on the brain works to entrench narrow readings of law and discourage feminist reforms. However, emerging neurotechnologies such as brain scanning and neuropharmacology also have disruptive qualities that might be harnessed in the interests of feminist legal inventions and interventions. This paper looks to the disruptive aspects of neurotechnologies to argue for an alternative brain-based subjectivity in law, one that sees the brain as 'open': an organ that connects us to others, that is embedded in relationships and situated in a particular history and politics. Such an approach makes visible the gendered underpinnings of 'neurolaw' and allows for a brain-based legal subject that is open to feminist creativity.
This is an open moment: although the outcome is far from clear, it is apparent that the brain is a plural thing, culturally speaking.1
1.0 LAW, GENDER AND THE BRAIN
Neuroscience is increasingly impacting on contemporary life, with brain-based research filtering into new and unexpected social and cultural domains.2 Philosophers and scientists, as well as lawyers, have argued that neuroscience is poised to change the way that we make and apply law, specifically through a brain-based understanding of the legal subject. Whether legal subjects are lying, whether they have committed a crime, whether they can be held responsible for their actions, whether they have capacity to testify - these areas of law and many others are claimed as potentially transformed by neuroscience.3 In this construct, the brain becomes a proxy for selfhood. How a brain appears to function, as measured by a range of scans and other technological interventions, stands in as a truer test of who we are than our own account, since a scanner bypasses the possibly deceptive or self-deceptive speaking agent in favour of a seemingly more reliable scientific rendering of selfhood.
For a feminist, the claims of an emerging brain-based legal subject are both worrying and promising. There are signs that the brain-based materials on which law may draw are gendered in potentially negative ways that are rendered invisible by the scientific language in which they are couched.4 There are also resonances between the reductionist qualities of the brain-based subject and the traditional limitations of law that feminists have been struggling against for decades. Yet there is also the promise that opening up new areas of subjectivity will allow for feminist incursions into law. How will a brain-based subject impact on feminist efforts to make space for women's disadvantage to be recognised in law? To get women's experiences inside law, to have them afforded legal protection, feminists need to be constandy pushing against or disrupting the boundaries of law. In this article I consider two feminist approaches to transforming law and legal selfhood: stretching and invention, with reference to how feminists have attempted to change legal responses to women's disadvantage. I argue that emerging neurotechnologies such as brain scanning and neuropharmacology provide two essential elements that allow for feminist legal invention: disrupting traditional definitional boundaries and making visible aspects of identity that are otherwise invisible in law. I describe a brain-based subject of law that is open to feminist invention.
2.0 THE EMERGING BRAIN-BASED SUBJECT OF LAW
As neuroscientific developments begin to pervade public life they are transforming social institutions and the way that identity is lived and understood. The intensification of brain scanning research, and the public presentation of this research as a source of unique insights into aspects of human identity, has fed an increasing biologisation of selfhood. …