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KMID : 1172020210220020037
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Journal of Korean Bioethics Association
2021 Volume.22 No. 2 p.37 ~ p.52
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Is mental self-determination needed as a new right? : A brief study related to the development of neuroscience
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Chom Min-Young
Kay In-Kook
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Abstract
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So far, law has not paid much attention to protecting minds. First off, there was no reason to, and second, the binding nature of law has made it desirable not to. The advancement of neuroscience, however, proves through many cases that legal protection for mind is necessary. In this regard, this article aims to discuss whether mental self-determination or cognitive freedom that has emerged as a new right along with development of neuroscience. For this purpose, the article will first highlight whether the existing international norms and judicial judgment have capacity for regulating “mental interference” or “mind manipulation” especially from the perspective of freedom of thought, conscience, and faith as well as from the right to mental integrity. Those who believe it is difficult to resort to the existing norms in regulating new concept of mind manipulation argue that a new fundamental right of mental self-determination or cognitive freedom should be recognized. This article will introduce such opinion and then provide counterargument thereto. Next, this article will determine i) whether our legal system calls for a new fundamental right by taking a look at basic constitutional rights (e.g. human dignity, right to bodily integrity, right to conscience, right to privacy and right of self-determination to personal information) and judicial judgment regarding them and ii) whether a new corpus delicti is needed to punish mental manipulation by reviewing relevant provisions of Criminal Act (including assault, injury, coercion, fraud, etc.). Lastly, this article will propose that an issue of mental manipulation can be addressed through interpretation of existing rights and laws rather than through introduction of new rights. At the same time, however, it will recognize that criteria and threshold of mind manipulation at stake can become different depending on the pace of technological development and end with an open conclusion. What is most important here is that the current legal norms need to be given a new angle going forward as neuroscience continues to develop. New neuroscience technology urges a discussion on the scope and limit of our “right to mind.”
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KEYWORD
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neuroscience, mental self-determination, cognitive liberty, mind manipulation, mind interference
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