2.1 Definition, foundation and vocation of human rights

In our reflection about the relation between neurosciences and human rights it is suitable to clarify what we understand for human rights: they are the set of goods the recognition and protection of which, in each historical moment, reflect the concrete the demands of human dignity, freedom and equality, all of which must be positively recognized by legal systems on a national and international level.⁴

When we talk about them as being «goods» we mean that they are «valuable things», that is, realities with which we human beings are gifted and are objectively essential and fundamental for our existence and development. The classic definition of justice as «to each their own» (ius suum cuique tribuere) helps us understand this slightly abstract concept, but not the less real. «Their own» (ius) is what «belongs to each one».

Human rights, then, have an ethical foundation, given that they are presented as a body of objective moral demands, that is, they don’t depend on the consensus of parliamentary majorities that approve and promulgate positive law. My life, my freedom and my dignity do not depend on any law or authority that recognizes them. They are goods (things valuable in themselves) that belong to me for the mere fact of being human. Therefore, human rights precede positive law.

However, human rights conceived this way naturally have a juridical vocation, that is, they must be positivized. That is why the state (the legitimate authority of a specific political community) has the task and the duty of recognizing them, guaranteeing them and promoting them to ensure and facilitate peace, social cohesion and mutual coexistence. The state, therefore, does not create human rights, but rather these belong to every human being. The duty of recognizing and protecting said rights is such that a positive law (democratically approved in a parliament) that ignores or does not recognize them will have to be considered an unjust law.

2.2 Characteristics of human rights

By their own nature, human rights are characterized for being universal, given that all human beings possess these fundamental goods and the sole condition for them to be recognized is the fact of being human. Precisely because of it, we can say that human rights are inherent that is, inseparable from human conditions. They rise with the new human being and fall with the person’s death. Precisely because they are essential goods endowed with objective value, human rights are unownable, that is, are not susceptible to acts of domain. That means that said goods are so fundamental to our existence and development as human beings that they cannot be bought, sold, nor can one renounce or dispose of them, not even the individual who owns them. Of course, the State cannot assume the faculty of legitimately owning them, calling upon the collective benefit. In this sense we talk about human rights being unconditional, as they ought not to be violated, infringed or arbitrarily limited.

From this general view of human rights, we can better understand in what measure neurosciences and their applications, in the form of neurotechnologies, can contribute to the satisfaction or realization of these rights that entail correlative human duties. Indeed, there are no true and effective rights unless to every right being called as such (in a strong sense) is associated with a correlative duty (or responsibility to do or not to do) by the other individual, group of individuals or institution. This is a demand proper to the intersubjectivity of the law, which has already been mentioned. Therefore, we must now point out which are the human rights at stake in the field of neurotechnology, and their respective correlative duties.

3.1 Right to life

Life is the first of the fundamental rights over which our existence is constructed. A basic element and condition of possibility of this life of ours is precisely our human body that is naturally endowed with a brain and mental capacities that are developed throughout our existence thanks to the proper functioning of our brain.

It does not seem very accurate to assert that we have the right to have a brain (healthy and completely functional), as, to whom could we attribute the duty of providing us with one? Nonetheless, what we are capable of discovering is that «the human brain is the organ of the human species that most profoundly distinguishes us from all other species, including other primates (...) it is the foundation of human existence -personal, sub-personal and interpersonal. This gives us reason enough to attach particular value to the brain, and to appreciate the profound concerns that surround interventions that act directly upon it».⁶

New technologies undoubtedly offer promising possibilities of intervention to try and alleviate or even resolve certain pathologies or mental disorders, but it is undeniable that some of these interventions, mainly those of invasive character (deep brain stimulation or certain neurosurgeries) risk the lives of the patients undergoing them. For this reason, prudence will have to be a leading compass for neuroscientists and neurosurgeons in their neurotechnological diagnosis, treatment and intervention so as to safeguard the patient’s life, the safety and efficacy of said interventions, trying to always intervene as little as possible granting the therapeutic result desired in the effective repair of the cerebral damage or mental disorder of the patient.

3.2 Right to physical and psychical integrity

«The crucial role of the brain in the functioning of the mind, the body, and the development of self-conceptions and autonomous agency makes it clear why neurological disorders and other conditions with a neurobiological basis threaten such profound and distressing personal consequences. Damage to the brain can rob individuals of their ability to participate fully in life by affecting the individual’s mood, capacity for organized action, their awareness of themselves and others, and their memory».⁷

Neurotechnology interventions with therapeutic ends try to offer a solution to the necessity of alleviate and treat specific cerebral dysfunctions or mental disorders that jeopardize the physical and psychical integrity of individuals. From the bioethical perspective, the therapeutic intention of research and medical interventions justify the use of such methods when the safety and the effectiveness of the procedures are sufficiently ensured, when the autonomy of the patient is respected (or of the individual that is subjected to experimental procedure or a clinical trial) and a proper consent is obtained on the basis of complete information the nature, aim and possible consequences of the intervention.

3.3 Right to identity

«The brain receives special attention because, for each of us, it is uniquely associated with ‘me’; with our subjective self-conception and capacity to develop and exercise this conception through our actions, pursuits and relationships with others. In many cultures (though not all), a high value is placed on the development of this individualized sense of oneself. This is associated with the belief that developing and realizing this identity through the course of one’s life and relationships with others is a central aspect of living a fulfilling human life. Brain damage can, however, threaten this ideal of self-realization, since injury or disease has the potential to disrupt this possibility at the most fundamental level by interfering with the capacity to form and maintain a connected sense of oneself over time».⁸

The right to identity -another fundamental human right- is mainly understood as the right to be oneself, referring to the subject’s image that participates in social life, with its acquired ideas and experiences, with ideological, religious, moral and social convictions, that both differentiate and qualify the human being⁹.

Therefore, personal identity constitutes a good in itself, independently of personal or social condition, of the qualities and defects of the subject: to each is recognized the right of his or her personality being preserved.¹⁰

In this field, neurosciences have a particularly delicate role given the plasticity of the brain, its capacity of active perception, and its continuous relation and selection of characteristic and properties of the world will directly affect the very definition of identity, expressing new neuroscientific and biotechnological concepts of personality. For example, those that Rose calls «the neurochemical self».¹¹

Conceiving the world in this manner means imagining that disorders reside in the brain of the individual and its functioning, therefore considering psychiatric drugs as a first line of intervention, not only to alleviate the symptoms, but also to regulate and manage these neurochemical anomalies.¹²

Therefore, the use of neuroscientific and biotechnological devices can not only risk the privacy of the individual (a fundamental aspect of identity) with regards to the use of personal data, but can also express the possibility that identity will be reconstructed from outside, thus not being the object of an individual choice anymore. Such tendencies are justified in the name of social security.

3. 4 Right to privacy

Information obtained through the use of neurotechnologies is personal, and data obtained through them must be treated as confidential information as it is especially sensitive.¹³

The hypothesized possibility of «entering» the thought, intentions and memories of people must be carefully analyzed and pondered from an ethical perspective. What every person keeps in his or her mind is a good that only belongs to said person and is therefore exclusive to the person and whomever that person decides to share it with. We can easily imagine that is laws punish trespassing of private property in order to protect the privacy of the household, even more should we exercise caution when talking about the technical possibility of accessing people’s mind, especially when the discourse revolves around the possibility of intervening, modify or alter these faculties, under certain conditions.

Prudence and caution will have to lead public and private decision-making in this field,¹⁴ guaranteeing not only the safeguarding of fundamental human rights but also that capacity of decisionmaking regarding those rights is not left in the hands of certain individuals, causing inequalities and potential inhumane and degrading treatment.

3. 5 Right to freedom

Respect of human rights implies the legitimate aspiration of men to broaden their knowledge about neurosciences consistent with the tutelage of human integrity -understood as the unity of soul, mind and body- with essential or fundamental necessities such as freedom, identity and safety.

In fact, the very concept of human freedom has been frequently questioned by neurosciences. Contemporary debate about the topic has been well synthesized by Kerri Smith in an article published by Nature in the year 2011¹⁵ about the first experiments that have most influenced a vision of the neuro-conditioning of man’s freedom.¹⁶

Precisely from this perspective, in 2008 John-Dylan Haynes demonstrated through neuroimaging techniques that human intentions are formed in the secondary motor cortex up to seven seconds before the individual becomes aware of his own decisions:¹⁷ neurological nets (and their relative pluristratification) would be the cause and would become the elements responsible for intentional and voluntary behaviors as well as all their manifestations, even physical, of the mind-brain system.

The results have also been supported by other research (Bode, 2011) which states that: “these results are in the conclusion that the premise of the cortex is part of a network of brain regions that shape decisions right, much sooner”.

However, as some point out,¹⁸ such interpretations of human acts and will do not take into consideration mental intentionality, ignoring the synchrony of processes of intentional elaboration and of the specific mechanisms for the performance of the intention in actions through impulses of the will. Moreover, it would be impossible to explain why a specific behavior was preferred to another, nor clarifying the «natural» selection mechanism of such behavioral patterns. Undoubtedly, such perspective does not only denigrate and mortify human dignity, it also wounds the right to the self-accomplishment of one’s own identity.

4. 1 Free will

Western philosophical tradition has for long been embracing the existence of a unique trait in human existence, that distinguishes it from that of any other animate being: the capacity of self-determination, that is, of choosing between different courses of action, part of our actions being therefore product of our will, conscious and more or less autonomous.

This autonomy, as a capacity to place in the foreground the determination of the will to act, and, subsequently, to choose the orientation of our action, in one or another sense, presupposes human understanding and absence of coercion. This is what great philosophers and anthropologists, since antiquity, have generically called «free will». In Augustinian terminology, libertas minor consists in choosing consciously and voluntarily; libertas maior, however, refers to the space of possibilities in which human actions are performed: «freedom for», when man uses correctly his liberum arbitrium to do good.²⁴

Free will coincides with what we call in modernity «autonomy», psychological freedom, or, more commonly, «freedom of choice», which would have two instances or dimensions: the capacity to choose to act without internal or external coercion («freedom of auto-determination»); and the capacity of choosing the route or course of action, that is, choosing one among all possible options («freedom of specification»).

According to a celebrated tradition of philosophical anthropology, freedom of choice, more than a characteristic or data of human nature, is a feature of certain human actions. Differently from other beings (inert, animal and vegetal) whose movement is absolutely determined by physical-biological factors, instinct, etc., and which are absolutely incapable of making authentic choices, the human being would possess a moderate, relative (non-absolute) but real free will, which would allow him to decide the direction of some of its actions.

Man would also be the only rational living being capable of autonomously orientating some actions of his internal and external conduct, and therefore only in regards to him could we speak of free will, as a specific characteristic, intrinsic, inherent to its being, that is able to develop since it possesses a minimal mental capacity or psychological maturity.²⁵

This capacity of choosing, which some call «freedom of maneuvering», is the necessary presupposition, but not sufficient, of «creative freedom», which is what brings the human being in touch with the good.²⁶ Autonomy or the capacity of choice consists in the psychological freedom to choose, which is perfected when we choose that which is authentically good.

Free will, therefore, stands as the condition of possibility of human freedom, and therefore, of moral freedom, something quite important, given that freedom goes hand in hand with responsibility: man is responsible for his acts, in so far as they are free acts. However, at the same time, actions are truly free when we hold ourselves responsible for them and their consequences.

Man is akin to, seeks and directs his actions towards the true, the beautiful and the good. Focusing on the latter, the mere possibility of choosing the bonum, makes the human being the only moral subject on the face of the earth, capable of moral right (the consequence of which is merit); and moral wrong (the consequence of which is demerit). It is then appropriate to speak about a moral action when this connects its author with the good that to it belongs; and about virtue, when the will is stable in the habit of choosing the good, freely, and therefore, responsibly.

This understanding of human conduct, which ties together freedom and moral responsibility in an inseparable manner, also has consequences in the normative order as law, given that, in the juridical environment, the conditions of freedom of action are fundamental for their juridical qualification. As in the field of ethics, if a juridical process demonstrates that the subject was not free in his or her actions, he or she could not be held responsible for the actions committed. We can affirm that a good part of juridical responsibility theory depends on the acceptance of free will.

However, since the dawn of anthropological and philosophical thought in general, though especially in Modernity, the real reach and the very existence of freedom of choice has been questioned.

The philosophical thought of Spinoza strongly exemplifies the deterministic conception of nature conceived in a logical-mathematical manner, and therefore man, part of that whole, is the subject and prisoner of the inevitable necessity that determines natural changes, including human affections and passions. «Men are mistaken in thinking themselves free; their opinion is made up of consciousness of their own actions, and ignorance of the causes by which they are conditioned. Their idea of freedom, therefore, is simply their ignorance of any cause for their actions».²⁷

Numerous thinkers, according to different foundations, have directly doubted or denied the existence of the freedom of choice, according to the diverse modulations of determinism (theological, metaphysical, physical, epistemological and psychological) the central ideas has always remained the same: there are many diverse factors and circumstances (internal and external), affecting, influencing and determining human decisions in such a strong manner that, man does not decide or really choose. The fact of deciding, and the direction and orientation of its actions, are determined by these internal and external factors. We think that we decide, but free will is an illusion without real ground. The mind, according to the psychologist Daniel Wegner, produces just an appearance, a continuous illusion, but does not really know what causes our actions.²⁸

For its part, the fatalist argument tries to dissolve free will, and consequently also the freedom of choice, in a universal causality. Every happening would have its cause, and a choice is always tied to a reason - there is a «causal antecedent» in every choice.

According to determinists, our decisions are the consequence of the inevitable consequence of strong genetic, physical-biological, metabolic, hormonal, psychological, cultural, biographical, environmental conditions, etc., or of their combination, that determinatively affect our will, eliminating our capacity to choose. Denying free will, one denies the basic premise of a moral and ethical life.

Probably, within the contemporary history of thought, the most weighty theses against the existence of the freedom of choice were formulated by the so-called «masters of the school of suspicion», in particular S. Freud, who attributed the origin of our decisions to the effects of what he called «passive synthesis», inexorable deterministic influence of all human willing.²⁹ We do not choose; we only believe we do. Consequently, free will does not exist, it is an illusion.

Absolute determinism, in which all the universe, including human beings and their actions are subject to a rigid cause-effect chain, is incompatible with free will (incompatibilism). In clear incoherence with the core of this doctrine, some of this current of thought admit human freedom and an absence of external coercion in actions.³⁰

Christian theology and the ranks of many important philosophical currents (Neo-Thomists, Realists, Personalists, etc.) have replied to this deterministic assertion, arguing that these factors (internal and external) condition our psychological freedom and strongly influence our free will but do not «determine» our actions, since a margin of autonomy or freedom remain in them.³¹

The determinist ideology excludes free will since freedom proper to human beings breaks the chains of determinism; actions performed under free will have no causal antecedents, just mere conditionings. «Condition» is not the same as «determine».

In any case, «the exercise of free will does not consist in choosing arbitrarily, without any «reason», that would be dissolvent and chaotic, and unthinkable situation, an unintelligent concept, actions rather take place within the open process of personal development; they are conditioned choices, but not rigidly determined as the laws of nature are».³²

Recently, some authors have tried to reconcile and harmonize the determinism of nature with the existence of free will: what is called compatibilism. It is not easy to combine freedom with the cerebral causal processes.³³ Compatibilism «bases free will in the characteristics of the human mind, that would be generated according to the neuronal processes of the central nervous system, governed by physical and chemical causality. The argument of these intellectuals proposes that these processes that faithfully follow the cause-effect chain would generate, or, using trendy philosophical slang, human conscience and the free will that depends on it, ‘emerge’ from neurological determinism. Mental life, according to these authors, strictly depends on the nervous system, on biological matter».³⁴

In this context, hard determinism would be that version of incompatibilism that fully and absolutely accepts the deterministic worldview and, consequently, fully refuses the coexistence of freedom. Finally, libertarianism, which agrees with hard determinism in refusing compatibilism, accepts, however, the existence of free will admitting an indeterminism in reality that makes it compatible with freedom.³⁵

Some other explanations go through the so-called practical indeterminism, quantum indeterminism, the physics of chaos, emergent evolutionism, all of them with a materialistic-biological basis.³⁶

For Roger Bartra, the solution to the problem of free will is found in what he has called the exobrain: «part of human behavior manages to escape the deterministic nets of causation. Decisions are made in a sociocultural context and under certain conditions some individual choices not subject to deterministic laws. It could be argued that there is a social determinism that, at the same time, could be reduced to causal mechanisms located in hundreds or thousands of brains. However, the different expressions of social determinism in its extreme versions (from social Darwinism to Marxist economics or sociobiology) have failed. With more reason is a determinism that reduces the social to the biological destined to failure (and, following the chain, the biological to the physical). The sociocultural networks that unite the collectivity of brains have their own laws, rules, norms and structures. It is at this point where we can locate the problem of free will, and from here start to understand its neurophysiological and biogenetic dimensions».³⁷

Apart from the philosophical response to different forms of determinism, which we do not have room in this essay to summarize,³⁸ and even though the debate between determinists and indeterminists, and between compatibilists and incompatibilists, is still open,³⁹ it seems that we can affirm that we all have our own biographical experience of deciding and our moral experience, as an existential proof that, though strongly influenced, our freedom of choice is real.

4. 2 Neurosciences and the new neurobiological determinism

North American scientist Benjamin Libet (1916-2007) had made a name for himself in the 70’s of the 20th century for a series of experiments showing that, even when a tactile sensation takes half a second in being consciously reported by the person, subjectively he or she perceives it as having arrived at the same instant.⁴⁰ Later, Libet managed to measure the moment in which the person decides to act (for example, moving a finger) and the instant in which he or she finally does it. He registered with an electroencephalograph the activity of the cerebral cortex and with an oscilloscope he timed every event.

Libet observed that voluntary acts came preceded by a specific electrical charge in the brain (the «readiness-potential»). The experiment demonstrated that this electric potential of readiness happened before the subjects manifested their intention to perform an action, that rather took place after having consciously decided it. He also showed that a voluntary decision could abort the movement, even when the readiness-potential had already been released.

As Roger Bartra explains: «Libet reached the conclusion that the intentional action starts unconsciously. But he also observed that conscience can control the result of the process through a sort of veto power: it could inhibit the mechanisms that lead to action, even when this has already been unconsciously started. His own conclusions have been heavily criticized by determinists, as he asserted that free will is a scientific option as good or better than its negation.⁴¹

Libet’s experiment generated interpretations that could be tagged under name of neurological or neurobiological determinism.⁴² There is a group of neurophysicists and psychologists that hold that both freedom and conscience, the former being traditionally founded in the latter, are not real properties of the will or of the mind, but are rather «illusions» of the subject, with ground in the cerebral processes that act as physiological support.⁴³ They present a new version of the combative German naturalist materialism of the end of the 19th century, with names as Haeckel, Vogt and Moleschott, though more refined, scientifically rigorous and undoubtedly gentler.⁴⁴ The epistemological and ontological shortcomings of this monism are many and have been diversely pointed out.⁴⁵

But if we focus on what neurosciences could add today to the debate about the existence of free will, we adhere to the conclusions of the analysis of José M. Giménez-Amaya and José I. Murillo, which explains how such an important aspect of our psychological constitution, as «the phenomenon of self-conscience is, is decisive to inquire about self-determination and free will, exceeds the resources of a reductionist neurobiology.... New neuroimaging techniques have not managed to show the functioning of our brain as a whole in a unitary manner, neither from the cognitive perspective nor in the field of affectivity and memory. This invites us to consider the conclusions of their analysis as highly hypothetical.... It clearly appears, therefore, that the great scientific stumbling block of modern Neuroscience is to find a congruent explanation in the quest to find out how our brain works as a whole and unitarily in the cognitive, emotional and memory processes and now also in terms of self-awareness. Neuroscience is not able to provide a unitary vision of all of our actions as men».⁴⁶

The understanding of self-awareness is vital to face the problem of the existence of free will. For some neuroscientists, a neurobiology compatible with freedom is possible. For instance, Eric Kandel, set forth five principles that should, in his opinion, frame the investigations about mind-brain relations, concluding that Neuroscience is the privileged method to solve humanity’s biggest questions, freedom being among them.⁴⁷

If new neurosciences cannot completely explain phenomena such as the cognitive process, memory, affectivity or self-awareness, it is because, even though said phenomena are based in physical-biological structures, they cannot be reduced to them. An interdisciplinary approach is needed, one that does not exclude other sciences, sciences such as philosophy. Neurosciences lack the capacity to offer a global, total and unitary explanation of these processes and activities of the human being, because of the inadequacy of their scientific method to know certain realities that exceed the empirical level and belong to the realm of the meta-empiric or metaphysic.

Current biological reductionisms are new forms materialism and scientism that do not help understand, in its enormous complexity, these aspects of our being. As Gazzaniga wrote: «At a time when we all accept that causal forces are the only way to understand the physical world, don’t we need a new frame of thinking to define the interactions and mutual dependence of the physical and mental world?... Even with the knowledge of physics, chemistry, biology, psychology and all other disciplines, when the mobile parts are looked at as a dynamic system, an undeniable reality emerges: we are responsible agents. As my children say: «you will have to get over it». Human life is a great thing».⁴⁸

In our opinion, human acts cannot be reduced to what the empirical data shows, as they are presented reductively in the renewed rationalistic mechanism of some neurologists.⁴⁹

Human action, and the moral life that gives rise to freedom, are something more complex. It is necessary to integrate the physiological, sensorial, organic aspects, etc., with realities that escape biologicist reductionism, such as human affection or love, responsible for what we might call the “awakening” of freedom.

Human action is not human without the intellection of the ends; it is human inasmuch as it has an intentional unity between the proximate and final ends. It is of an existential, transcendent nature.

This interpretative framework, which incorporates an interpersonal dimension, teleology, intentionality and affections, fills the human action with meaning, because it reveals the truth of man.⁵⁰