Neurorights as Hohfeldian Privileges

Abstract

This paper argues that calls for neuro- rights propose an overcomplicated approach. It does this through analysis of ‘rights’ using the influential framework provided by Wesley Hohfeld, whose ana- lytic jurisprudence is still well regarded in its clar- ificatory approach to discussions of rights. Having disentangled some unclarities in talk about rights, the paper proposes the idea of ‘novel human rights’ is not appropriate for what is deemed worth protect- ing in terms of mental integrity and cognitive liberty. That is best thought of in terms of Hohfeld’s account of ‘right’ as privilege. It goes on to argue that as priv- ileges, legal protections are not well suited to these cases. As such, they cannot be ‘novel human rights’. Instead, protections for mental integrity and cogni- tive liberty are best accounted for in terms of familiar and established rational and discursive norms. Men- tal integrity is best thought of as evaluable in terms of familiar rational norms, and cognitive freedom is constrained by appraisals of sense-making. Concerns about how neurotechnologies might pose particular challenges to mental integrity and cognitive liberty are best protected through careful use of existing leg- islation on data protection, not novel rights, as it is via data that risks to integrity and liberty are manifested.