From black box to ʻopenʼ brain: Law, neuroimaging and disability discrimination

© 2011, Routledge. All rights reserved. The brain is commonly thought of as a bounded and private organ of selfhood – a repository of individual thoughts and desires, a ʻblack boxʼ closed against incursions. Yet contemporary neuroimaging technologies seem to open the brain to scrutiny, offering a selfhood that is increasingly transparent, knowable and manipulable. On one view, this recasts the brain as a site of potential regulation, subject to the language of self-discipline, law and medical intervention. Yet there is also a disruptive element to these technologies, as they reveal the brain to be embedded in overlapping biological, social and environmental systems, interdependent and in constant change over time. This article considers the significance of these developments for law, with particular reference to the construction of disabled identity and the brain in discrimination law. Will this sense of openness in the brain merely provide opportunities for increased medical regulation, in which law is bypassed, and neuroimaging technologies facilitate the identification of risk in individuals and mitigation of that risk through neurochemical and other brain interventions? Reading these technological developments alongside current theories of disability and neurodiversity, this article offers an alternative view of legal selfhood in which the brain is neither a black box nor an object to be screened and controlled, but open in a more radical sense, inseparable from its functioning within the body and environment, constituted by and constitutive of the Other