The Society of Enhanced Legal Scholars, Seven of Nine, and some regulatory challenges for future generations by Roger Brownsword INTRODUCTION REGULATORY LEGITIMACY: THREE evelopments in information and communication SCHOOLS OF THOUGHT technologies have transformed the way that Where human enhancement is simply cheating by Dlawyers work. Nowadays, the electronic resources another name, we should obviously take a negative view. are so swift, comprehensive and convenient that However, if the rules permit enhancement, or if the researching the law only occasionally involves consulting situation is not competitive, is a negative view still the hard copy sources in the library. Imagine, though, that appropriate? If regulators permit (even encourage) further developments of this kind, coupled with physical and intellectual improvement, why prohibit developments in biotechnologies and nanotechnologies, as technologies for human enhancement? Does it make sense, well as in human brain/machine interfacing, reach a stage for example, to argue that regulators should permit the at which all legal source materials are on a tiny chip connected to the human brain. With such enabling application of technologies to correct impairment (such as technology, the lawyers of the future will be more than failing eyesight) but not to enhance human capacities (for advanced, they will be enhanced. Should we welcome example, to equip a person with X-ray or all-round vision)? enhancing developments of this kind? Should we try to How do we sort out the ethical wheat from the chaff? resist them or confine them? How should regulators What is the appropriate standard of regulatory legitimacy? respond? What kind of regulatory environment should be Broadly speaking, ethical argument adopts one of three set for a community of potentially enhanced citizens, basic forms: namely, goal-orientated (consequentialism), lawyers, and law-enforcers? rights-based and duty-based forms. Each form is a mould In Rights, Regulation and the Technological Revolution or a shell, open to substantive articulation in many (2008), I identified three challenges that nation states face different ways: different goals, different rights, and as they endeavour to put in place the right kind of different duties may be specified. Nevertheless, in regulatory environment for the development, application principle, the basic pattern of ethical debate, whatever the and exploitation of emerging technologies, an environment particular technological focus – whether it be properly geared for risk management, for liability and biotechnology (and bioethics), ICT (and cyberethics), compensation, for incentivisation, and for benefit sharing. nanotechnology (and nanoethics), or neurotechnology These are the challenges of, respectively, regulatory (and neuroethics) – is governed by this matrix. legitimacy, regulatory effectiveness, and regulatory Accordingly, when the questions concern human connection. On this analysis, regulators are liable to be called to account if the purposes or objectives that they are enhancement, with a variety of technological interventions pursuing (or, the manner and means by which they pursue being mooted, it is the ethics of consequentialism, the those objectives) are judged to be illegitimate; or if their ethics of rights, and the ethics of duties that we can expect interventions are ineffective and not fully fit for purpose; to be pleaded. More particularly, it is the ethics of or if they have failed to make a timely, targeted and utilitarian consequentialism, of human rights, and of sustainable regulatory connection. In this short article, dignitarian duty that will be pleaded because, in this however, I will discuss just one of these challenges, that of context, these are the principal substantive articulations of 8 regulatory legitimacy. the basic matrix. Amicus Curiae Issue 78 Summer 2009 In general, unless there are major safety concerns, Dignitarianism utilitarians will assert the “green light” ethics of The most conspicuous opposition to utilitarian green- proceeding, a case of promotion (of the technology) modulated by a degree of precaution; human rights lightism comes from the dignitarians; and the most theorists will take an “amber light” approach insisting that eloquent advocacy against human enhancement comes the technological traffic pauses (to ensure rights, especially from Michael Sandel (The Case Against Perfection, 2007). It is informed consent, clearance) before proceeding; and not enough, as Sandel concedes, to intone that dignitarians will take a “red light” approach to those “enhancement, cloning, and genetic engineering pose a technologies (or their applications) that they judge to compromise human dignity. threat to human dignity” (at 24); while this might be correct, “the challenge is to say how these practices Utilitarianism diminish our humanity” (ibid). In what sense, then, might For utilitarians, we do the right thing if we follow we think that human enhancement compromises the duty whichever option seems to have the best prospects of to respect human dignity? maximising welfare or minimising distress. Taking such a utilitarian approach, John Harris (Enhancing Evolution, Dignitarians operate with a number of axioms, one of 2007) has argued that regulators should treat human which is that it is wrong to commodify the human body. enhancement as permissible – enhancing measures being Some might think that human enhancement does involve understood as those which commodification; that this compromises human dignity; make us better at doing some of the things we want to do, and that this is precisely why regulators should intervene. better at experiencing the world through all of the senses, For example, suppose that humans are equipped with better at assimilating and processing what we experience, nano-sensors monitoring their health and with drug better at remembering and understanding things, stronger, more competent, more of everything we want to be. (at 2) release systems that are activated when problems are detected. According to Bert Gordijn ((2006) 34 Journal of Indeed, provocatively, Harris has argued that “not only are [such] enhancements permissible but…in some cases Law, Medicine and Ethics 726): there is a positive moral duty to enhance” (at 3). [S]uch developments will contribute to a more technologically Quite possibly, some utilitarians (applying the same inspired image of the body as something very similar to a utilitarian criteria) might disagree. It has been suggested, machine. The body will increasingly be regarded as a whole, for example, that the blurring of the boundary between made up of many different components that might be fixed, man and machine might give rise to various feelings of distress, disorientation, and even existential panic. And, in enhanced or replaced if necessary. Development, functions, the context of life-extension, Leon Kass (admittedly, no and appearance of the body will seem less and less fixed by utilitarian) has remarked: nature and less frequently accepted without change, and more Even the most cursory examination of these matters suggests frequently controllable by technology. Instead of being in that the cumulative results of aggregated decisions for longer charge of our own health we might increasingly trust and more vigorous life could be highly disruptive and technology to take over this responsibility. In the process undesirable, even to the point that many individuals would be however, the body will be treated almost like the inanimate worse off through most of their lives, and enough to offset the benefits of better health afforded them near the end of life. material of a machine. Hence, the body might become Indeed, several people have predicted that retardation of aging increasingly de-hallowed and de-mystified. (at 729) will present a classic instance of the “Tragedy of the Commons”, in which genuine and sought-for gains to To the extent that nanomedicine adopts or encourages individuals are nullified, or worse, by the social consequences the functional view that is already evident in human of granting them to everyone. (Life, Liberty and the Defense genetics and the new brain sciences, this will compound of Dignity, 2002, at 261) dignitarian concerns about commodification. The promise Clearly, Harris and Kass read the runes in rather of in vivo nanosensors and drug release systems, like the different ways and who can be sure which view is the more promise of regenerative medicine, sounds fine until it is set accurate? As Harris himself concedes, “unless we can see alongside the disaggregation of humans into their clearly how probable and serious the dangers are and have a realistic basis for balancing them against the probability component parts. Is there really no distinction between and size of the benefits, we can have no basis for either humans and, say, a motor car or a computer – just so many precaution or enthusiasm” (at 17). parts, so many functions, so many models? 9 Amicus Curiae Issue 78 Summer 2009 More broadly, dignitarians express concern about the THE FIRST TEST: RIGHTS COMPATIBILITY cultural impact of emerging technologies. Famously, for Proposals for human enhancement surely will prompt instance, Francis Fukuyama (Our Posthuman Future, 2002) some familiar debates. For example, it might be argued has argued that we need to be careful not to undermine the that technologies to enhance human eyesight will prove to conditions that allow for the expression of the full gamut be incompatible