What the world needs now: Techno-regulation, human rights and human dignity, R Brownsword

Tags: empowerment, technology, human dignity, human rights, information technology, regulation, Fukuyama, regulatory challenge, globalisation, Regulation Task Force, technologies, Human Rights and Human Dignity, conception, accountability, regulatory purpose, traditional regulation, regulatory state, Polity Press, information technologies, human genome project, regulatory power, nuclear technology, global regulation, competition law, inalienable rights, Better Regulation Task Force, Future of Human Nature, Universal Declaration of Human Rights, Michael Trebilcock, Edward Iacobucci, human, human quality, human rights movements, guiding principles, Francis Fukuyama
Content: What the World Needs Now: Techno-Regulation, Human Rights and Human Dignity ROGER BROWNSWORD* INTRODUCTION THE STORY CURRENTLY being told about globalisation is one about the removal of barriers, about a deeper connectedness and interdependence, and about shifting spheres of inf1uence.l In this story, it is trade rather than technology that acts as the principal driver. Nevertheless, modem technologies are far from marginal.2In particular, with the rapid development of communications and information technologies, especially the Internet, our connectedness is represented by our membership of a global information ~ocietyB.~iotechnology, too, speaks to our connectednessbut also to a number of our concerns -for example, to concerns about exposure to genetically modified organisms, about bioprospecting and bio-piracy in the Third World, and about patent practice that privileges First World commercial interests. When we set these 'I am indebted to Mark Taylor and Natasha Semmens for reactions to a very early draft of the ideas in this chapter; and to the Leverhulme Trust, whose support enabled me to corn- lete my work on this chapter. P!3ee eg,J Stiglitz, Glokrlizutionmrd its Dirmntmts (London, Penguin/Allen Lane, 2002). For an account that is less focused on the economy, see B de Sousa Santos, Tomrd a New Legal Common Sense (2nd ed) (London, Butterworths, 2002). 2!3ee eg, D Held and A McGrew, 'Introduction' in D Held and A McGrew (eds), Governing Globalization (Cambridge, Polity Press, 2002) 1at 6; and cf, J Habermas, The Future #human nature (Cambridge,Polity Press, 2003) at 21 for a rather different analysisof the sigruficance of the 'explosive' conjunction between 'globalized neoliberalism' and Darwinian-inspired biotechnological application. 3 ~ e eeg, C T Marsden, 'Introduction: Informallsn and Communications Technologies, Globalisation and Regulation' in C T Marsden (ed), Regulating the Global Infinnation Society (London,Routledge, 200) 1.
204 Roger Bromszuord technologies in the specific context of global regulation, however, th become doubly significant, bearing on matters of both r challenge and regulatory opportunity. By 'regulatory challenge' (or 'regulability' as Lawrence term it): I mean the challenge of putting in place a regulatory fr2Ullework for the development and use of these new t e ~ h n o l o ~ i eJus d. ~gm the adequacy of such a framework, as about our success in ris regulatory challenge, will focus on at least three question whether regulation is eflective, whether it is legitimate, and whether its desigrz is optimal. In general, I take it that our starting po want to derive whatever benefits we can from these new te (and their successors) but (ii) that we must not permit such technologies to be developed or applied in ways that compromise fundamental values, . especially human rights or human dignity.7 By 'regulatory opportunity', I refer to the possible incorporation of new technologies within the regu- , J r latory apparatus employed in regulatory zones, whether or local (whether directed at the development and use of nology or, more generally, within the criminal and civil j Here, again, I take it that we start in much the same place. If so, then, we accept that, forbetter or for worse, these technologies will insinuate themselves into our everyday lives;9 and, whether we are thinking about the regulability of the new technologies or their regulatory power and poten- tial, the essential challenge is to maximise their benefits consistent with respect for human rights and human digmty. Francis Fukuyama's Our Posthuman ~ t r t u r e 'o~ffers a helpful stage for the discussion in this chapter. For present purposes, Fukuyama poses 4LLessig, Code and Other Lazos of Cyberspace (New York, Basic Books, 1999). For reflections on the 'newness' of these technologies, see M E Price, ' Technology' (2001)22 Cardow Lazo Rdnu 1885.For scepticism concerning the science,seeeg,U Beck,Risk Sociefy(trans M Ritter) (London, Sage Publications,1 lished in German, 1986);and, against scepticism in relation to the see eg,J Goldsmith, 'Against Cyberanarchy' (1998)65 Uniwrsifyof Ch 6For speculation about the trajectory of these technologies, Generation' Washington Post, April 26,2002, page C01. O n the Scient* k r c h : Innamtion w'th Conhuls (Better Regulation 'See eg the Preambles to the Convention for the Protedion of Human Righ the Human Being with Regard to the Application of Biology and Medicin Human Rights and Biomedicine, 1996, and to UNESCO's Universal Declara Human Genome and Human Rights, 1997(adopted by the UN General Assem see Resolution A/RES/53/152). See text below at 213. BCf, J Boyle, 'Foucault in Cyberspace: Surveillance, Sovereignty and Ha (1997-98) 66 University of Cincin~latLi azv Revim 177. 9Cf,S H Cutliffe, Ideas, Machines, and Values (Lanham Maryland, Rowman and Littlefield, 2000) at viii: 'At the Turn of the Millennium, society is faced with both the promises and the dangers of scientific and technological endeavors (sic) such as the human genome project and electronic Communication Systems, developments that must surely change our lives, either for better or for worse, but most likely for both.' 1°(London,Profile Books, 2002).
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Techno-Regulation,Human Rights rmd Human Dipity 205
( three important questions: first, whether we should ~ g u l a t beiotechnology: secondly, if so, why we should do so; and, thirdly, if we do try to do so,
whether we have any prospect of regulating the technology effectively. In
response to the first question, Fukuyama observes that, whereas some
technologies are relatively benign (the development of the Internet, he
suggests, falls into this category), others are dangerous. Further, in this
latter category, whereas some technologies are obviously and transpar-
ently dangerous (for instance, nuclear technology), others are less obvi-
ously dangerous (but, ex hypothesi, dangerous nevertheless). Fukuyama
places biotechnology in this latter division, from which it follows that he
advocates a vigilant approach by the regulators. Turning to the second
question (the answer to which is already implicated in the view that
biotechnology is an insidiously dangerous development),Fukuyama sug-
gests that the distinctive reason why we should regulate biotechnology is
not that it is unsafe (otherwise it would be a transparently dangerous tech-
nology) but that it threatens to compromise human dignity. Finally, with
regard to the third question, Fukuyama is well aware that doubts have
been expressed about the capacity of regulators to hold biotechnology in
check, especially when globalisation permits the technology to be devel-
oped in safe regulatory havens.ll Nevertheless, he rejects a defeatist atti-
tude and argues that the values at stake here are too important to be
abandoned to the technology. Certainly, in a global setting, it would be
irresponsible to deny that there is a signlhcant regulatory challenge; and
Fukuyarna urges us to address it as best we can.
So stated, it seems to me that Fukuyarna's position suppresses two
important tensions, one arising from competing conceptions of human
dignity, the other concerning the compatibility of human dignity with a
technologically-driven regulatory strategy.
The first of these tensions speaks directly to the question of regulatory
challenge, particularly to the question of legitimacy; for, it is relative to our particular conception of human dignity that we will judge whether
t the limits set by regulation are justified -whether we are over-regulating
or under-regulating. There are, of course, many conceptions of human
dignity but two in particular are focal for present purposes.12 Whilst one
conception ('human dignity as empowerment' as we may term it)
captures much of our concern about information technology, especially
about threats to privacy, the other conception ('human dignity as constraint' as we may term it) features prominently in many of the
concerns expressed about biotechnology. Although these conceptions can
1 1 S~ilver, Remaking Eden (London, Weidenfeld, 1998). 1 2 ~ u c hof this discussion, including the terminology, draws on D Beyleveld and R Brownsword, Human Dignity in Bioethics and Biolaw (Oxford, Oxford University Press, 2001).
206 Roger Brozvnsword
sometimes operate alongside one another in registering their distinctive concerns, they are fundamentally incompatible with one another. In
relation to the question of regulatory challenge, the import of this
incompatibility is that there is a serious conflict written into our assumed
starting point, namely that regulators should allow the benefits of the
technology to be exploited while protecting human rights and human dignity. Are we presupposing human dignity as empowerment or human
dignity as constraint? We need to know because there is a danger that we
will argue past one another;13and, crucially, because we cannot regulate
in a way that satisfies both conceptions of human dignity.
This first tension carries through to the expression of a second tension,
one bearing on regulatory opportunity and effectiveness. The deep ten-
sion here is, quite simply, this: if we conceive of human dignity in terms
of promoting and preserving the human capacity for autonomy, for mak-
ing one's own choices, then does it follow that we must reject regulatory
approaches that seek to achieve effectiveness by eliminating choice? If so,
we may find that we must tolerate a degree of regulatory ineffectiveness
for the sake of regulatory legitimacy.
Let us suppose that future global regulators (much like present local
regulators) encounter compliance problems (compounded by complica-
tions arising from questions of jurisdiction, choice of law, extra-territorial-
ity and the like) that diminish the effectiveness of their regulatory
interventions.14As Fukuyama recognises, this may engender defeatismin
some quarters. At least as likely, however, is the possibility that there will
be a regulatory turn to technologies that promise to secure higher levels
of compliance. As Matt Ridley has argued, technical fixes have been
employed to make people healthier, wealthier, and wiser; and, by and
large, what improves the quality of life is invention rather than legislation.15
Regulators may well conclude, therefore, that what the world needs now is
hi-tech social control (after hi-tech war comes hi-tech law). If so, where
technology is deployed in support of traditional measures of prevention
and enforcement, respect for human rights and human dignity continues
to be relevant to the lines that we draw around the acceptable use of the
technology (by the regulators). However, we can imagine an ideal-type,. 'techno-regulationf, in which the technology - whether by fixing the,
'environmentf or by fixing 'humansf-designs out the very possibilityf
1 3 ~ oerxample, as in the Relaxin Opposition at the European Patent Office (HOWARD.
FLORM/Relaxin [I 9951 EPOR 541).See R Brownsword, 'The Relaxin Opposition Revisited'
(2001)9 JahrbuchfiirRecht und Ethik 3.
14Seminally,for electronicenvironments, see D RJohnsonand D Post, 'Law and Borders:The
Rise of Law in Cyberspace' (19%)48 Stanford Lam ReDiew 1367;and, for more traditional envi- ronments, see eg H M Watt, Choice of Law in lntegrated and InterconnectedMarkets: A Matter of
Political Economy, 7 111sCommune, Lectures on European Private Law (February 2003). 1 5 Ri~dley, 'We've Never Had it so Good -and it's all Thanks to Science' Guardinn Life,
3 April 2003, 8.
Techno-Regufation,Human Rights a d Human Dignity 207 non-compliance. With techno-regulation, we do more than improve the likelihood, or even certainty, of detection; we do more than improve the likelihood of prevention and compliance; with techno-regulation, we guarantee complianceby altogether eliminatingany option for non-compliance. If information and biotechnologies are developed not merely to assist traditional forms of regulation but to operate as techno-regulatory solutions, and if we are committed to the conception of human dignity as empowerment, then we face the hard choice presented by our second tension: do we settle for less effective regulation (possibly permitting a degree of non-compliance that impinges on the rights and legitimate choices of 'victims') or, for the sake of effectiveness, do we adopt technoregulation (seemingly abandoning the importance that we attach to the dignity of choice and, with that, much of the basis on which our thinking about responsibility as well as rights, is premised)? The chapter has four parts. In Part I, Fukuyama's discussion of new technology serves as a platform for the two principal tensions to be addressed in this chapter. In Parts 11and III, we tackle the three dimensions of regulatory challenge-legitimacy (inPart 11),and effectivenessand opti- mal design (in Part m).In Part N,the focusshifts to regulatory opportuni- ty and particularly the prospect of techno-regulation.The tension between rival conceptions of human dignity is introduced in Part II and, in Part N, it develops into the tension between effectiveand legitimate regulation. I FUKUYAMA, TWO TECHNOLOGIES, TWO DYSTOPIAS For Fukuyama, the end of history (in the sense of the collapse of the communist bloc) marked the beginning of the present epoch of globalisation.16With communist polities no longer an option, the way was cleared for the spread of liberal democracies. As new markets were opened to trade and technology, global conditions became more congenial to respect for human dignity. The globalisation of individual autonomy and choice, of human rights and responsibilities, was underway. Yet, as Fukuyama reminds us, globalisation carries forward two dystopian visions that caution us as to the relationship between technology and human dignity. First, there is the Orwellian vision of the panoptican state and then there is Huxley's vision of a brave new world. Does information technology m a t e a pathway to the former and biotechnology a pathway to the latter? According to Fukuyama, the answer to the first question is negative; but, to the latter, it is positive unless regulation succeeds in closing off the dystopian avenues. 16Quaere:is the present instantiation of globalisation (understood as the export and import of commerce and culture) distinctive? If so, is it the nature of modem technology that accounts for this difference?
208 Roger Brownsword
According to Fukuyama, informationtechnology is largelybenign calling only for light regulation. Of personal computers and the Internet, he says: [Tlhese new forms of information technology (IT) promised to create wealth, spread access to information and therefore power around more democratically, and foster community among their users. People had to look hard for downsides to the Information Revolution; what they have found to date are issues like the so-called digital divide (that is, inequality of access to IT) and threats to privacy, neither of which qualify as earth-shaking matters of justice or morality.17
This is not the place to open a debate about where equality of access
(which is a major issue in the Third World) and respect for privacy (which
is an obsession in the First World) stand on a scale of moral sigruficance.
Suffice it to say that, in a global context, because of inequality, IT is just
one other thing to which the economically disadvantaged of the Third
World do not have access; and, in the First World, violations of privacy
would occur with or without IT. Most importantly, we have a pretty good
idea of what we think the risks are with IT; and, if we think that respect
for human dignity is an issue, we probably locate it in questions of priva-
cy or, possibly, the Internet as a vehicle for pornography. We might also
agree with Perri 6 that, for the most part, the regulatory challenges
presented by the Internet are generic, already familiar, and susceptible to reasonably successful responses -despite predictions to the contrary, the
Internet has not proved to be lawless.18
When we turn to biotechnology, however, Fukuyama sees a far more
insidious and earth-shaking threat. What exactly is wrong with the
biotechnologically engineered and pharmacologically controlled world
depicted by ~ u x l e ~A?cclo~rding to Fukuyama, the A grade answer runs
along the following lines:
-'. -.
[TJhepeople in Brave New World may be healthy and happy, but they have ceased to be human beings. They no longer struggle, aspire, love, feel pain,
l7 n 10 above, at 182.
I * .-j
lapem 6, 'Global Digital Communicationsand the Prospects for Transnational ~ e g d a t i m '
in D Held and A McGrew (eds),G m m i n g Globalization (Cambridge,Polity Press, 2002) 145.
Nevertheless, we should note Lessig's insight (n 4 above) that so much of the 'law' of the
Internet derives from the architecture of the technology, that it is a case of West Coast Code
rather than East Code Code. And for development of Lessig's account of regulatory modali-
ties, see A Murray and C Scott, 'Controlling the New Media: Hybrid Responses to New
forms of power (2002)65MLR 491.
l9 we might note, with Matt Ridley, that Huxley's dystopia actually 'owes nothing to nature
and everything to nurture. It is an environmental, not a genetic, hell. Everybody's fate is
determined, but by their controlled environment, not their genes. It is indeed biological
determinism, but not genetic determinism. Aldous Huxley's genius was to recognise how
hellish a world in which nurture prevailed would actually be.' See M Ridley, Genome
(London, Fourth Estate, 1999) 304.
Techno-Regulation, Human Rights a d Human Dignity 209
make difficult moral choices, have families, or do any of the things that we traditionally associate with being human. They no longer have the characteristics that give us human dignity.20
This is not to say that biotechnology offers no benefits for human health and well-being. However, Fukuyama's point is that our deepest concerns about biotechnology cannot be captured by a utilitarian calculation. Thus:
While it is legitimate to worry about unintended consequences and unforeseen costs, the deepest fear that people express about [bio]technology is not a utilitarian one at all. It is rather a fear that, in the end, biotechnology will cause us in some way to lose our humanity -that is, some essential quality that has always underpinned our sense of who we are and where we are going [ie, human dignity I.. .21
In short, we need the concept of human dignity to articulate our deepest
concerns about the biotechnological revolution - and, sure enough,
many would join with Fukuyama in contending that the reason why
human reproductive cloning, germ-line gene therapy, genetic enhance-
ment, embryonic stem cell research and the like must be regulated
(meaning, b; and large prohibited) is precisely that such
promise human dignity.p
At first blush, then, it seems that the difference between information
technology and biotechnology is that, while the former presents a fairly
transparent, but none too fundamental, threat to human dignity, the latter
presents a less transparent and more fundamental threat -but, again, it
is human dignity that is endangered. However, closer inspection of the
idea of human dignity being appealed to in debates about the new tech-
nologies shows that we actually have two conceptions of dignity in play.
( What is more, these conceptions are not compatible with one another. 1 Thus, the dignity concerns that we have about information technology I
20 n 10 above, at 6,emphasis supplied. To similar effect, see B McKibben, Enough: Genetic Engineering and the End of Human Nature (London, Bloomsbury, 2003). And, in his own distinctive way, J Habermas, The Future of Human Nature (Cambridge, Polity Press, 2003) at 73, has a similar view of what is at stake: Without the emotions raised by moral sentiments like obligation and guilt, replroach and forgiveness, without the liberating effect of moral respect, without the happiness felt through solidarity and without the depressing effect of moral failure, without the 'friendliness' of a civilized way of dealing with conflict and opposition, we would feel, or so we still think today, that the universe inhabited by men would be unbearable. Life in a moral void, in a form of life empty even of cynicism, would not be worth living. This judgment simply expresses the 'impulse' to prefer an existence of human dignity to the coldness of a form of life not informed by moral considerations. 21 n 10above, at 101. 2 2 B~rownsword, 'Bioethics Today, Bioethics Tomorrow: Stem Cell Research and the "Dignitarian Alliance"' (2003)17Notre Dame Journal#Law Ethics and Public Policy 15.
210 Roger Brownsword and, concomitantly, about the Orwellian dystopia are quite different to the dignity concerns voiced against biotechnology and implicated in our discomfort at Huxley's dystopia. The sooner we understand what this difference amounts to, the sooner we can work out where we stand with regard to regulatory legitimacy; and the sooner we can begin to develop a strategy for regulatory effectiveness.
I1 REGULATORY CHALLENGE I: LEGITIMACY, A N D TWO CONCEPTIONS OF HUMAN DIGNITY By reference to which criteria should we judge a regulatory intervention to be appropriate and successful? Clearly, effectiveness is one criterion: whether the regulatory purpose is to facilitate or to prohibit and control, no intervention should be judged to be successful unless it is effective relative to the intended purpose. However, to judge success (or failure) solely in these terms would be to place no limits on acceptable regulatory purposes. Equally clearly, therefore, particular regulatory purposes must be legitimate; and, as we have said, in the context of regulating new technology, respect for human rights and human dignity is widely thought to be the acid test for legitimacy. In this part of the paper, we can sharpen our thoughts about the rival conceptions of human dignity, human dignity as empowerment and human dignity as constraint, and begin to understand how they bear on the regulatory challenge. To do this, we can address the following five questions: (i) in what sense do we apprehend information technology as a threat to human dignity; (ii)in what sense do we apprehendbiotechnology as a threat to human dignity; (iii) are there different reference points for the demand that human dignity should not be compromised; (iv) where does Fukuyama's conception of human dignity fit in the scheme of things; and (v) what is the bearing of the rival conceptions of human dignity on the regulatory challenge?
Information Technology and Human Dignity
In what sense might information technology be thought to compromise
human dignity? Principally, if not exclusively, our concern is that modem
technologies of information collection, communication and processing
willjeopudise our interestsin Privacy and Confidentiality.Jurisprudentially,
at any rate in the common law world, the development of a privacy interest
is closely connected with technologies that enable others to collect infor-
mation about ourselves without our permission.23Ironically, state of the
2 3 D~Warren and L D Brandeis, 'The Right of Privacy' (1890)4 Harvard LAZU Reviezir 193.
Techno-Regulation, Humun Rights and Humun Dignity 211 art information technology threatens to return citizens to a Gemeinschaft order in which others know all about us and the private realm is eroded.24 Such distinctive concerns about information technology -or, at any rate, the dignity interest on which we base our privacy interestz5-draw on the foundational ideas of the Universal Declaration of Human Rights, 1948, and its partner Covenants on Economic, Social and Cultural Rights, 1966, and on Civil and Political Rights, 1966. In these historic instruments, we have the essential ingredients of human dignity as empowerment. For instance, each Preamble provides that 'recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom,justice and peace in the world'; and Article 1 of the Universal Declaration famously proclaims that 'All human beings are born free and equal in dignity and rights.' What this amounts to is the claim that each and every human being has inherent dignity; that it is this inherent dignity that grounds (or accounts for) the possession of inalienable human rights; and that, because all humans have dignity, they hold rights equally. So understood, it will be appreciated that the injunction to respect human dignity is much more than a demand that we commonly make in contexts where we detect demeaning or degrading treatment, or where we are trying to give weight to an interest in privacy, it is the infrastructure on which the entire superstructure of human rights is con~tructed.~~ Whilst the strength of human dignity as a justificatory base for human rights has been assumed rather than clearly demonstrated, in practice, once it is accepted that human dignity should be respected, it tends to be accepted that we should also respect human rights. Indeed, human dignity as empowerment has its own version of the triple bottom line, namely: that one's capacity for making one's own choices should be recognised; that the choices one freely makes should be respected; and that the need for a supportive context for autonomous decision-making (and action) should be appreciated and acted upon. Human rights then translate these underlying demands into entitlements that are due to each human as of right -and the fundamental right, as proclaimed, for example, by the 'pro-choice' and 'death with dignity' slogans, is to make one's own choices and have those choices realised and respected. Insofar as information technology adversely interferes with the context for autonomous action, possibly by exerting some inhibitory influence, we have a prima facie violation of human dignity (as empowerment).27 24CfLessig, n 4 above, at 150. 2 5 ~ e ee,g, EJ Bloustein, 'Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser' (1%4)39 New York Uniwrsity law Review 962. 26SeeA Clapham, Human Rights in the Private Sphere (Oxford,Clarendon Press, 1993) at 143, n 22, for examples of the recurrent use of human dignity in international human rights Declarations, Covenants, Conventions, an4 Resolutions. 27~eeeg,, C Fried, 'Privacy'(1968)77 Yale LauJournal475, esp 489-93 (reelectonicmonitoring).
212 Roger Bromzsword There are, however, tensions in this paradigm. First, although the community of (human) rights is designed to promote individual autonomy, there are limits to the choices that individuals may be permitted to make. Most obviously, each individual is required to exercise his or her autonomy in a way that is compatible with respect for the entitlements of fellow humans. Less obviously, the way in which choice is exercised must not damage the context in which a community of rights-respecting humans is itself possible. If information technology may inhibit the exercise of autonomy, biotechnology may so alter the context that autonomy (and associated ideas that go to the heart of a community of rights and responsibilities) is itself threatened. In other words, even in a setting dedicated to individual empowerment, human dignity may be invoked as a reminder of the required restraints - constraint, as it were, for the sake of empowerment. Secondly, the more that we emphasise that human dignity relates to the capacity to make one's own decisions or one's own informed choices or the like, the less compelling it becomes to present the rights built on this base as human rights. If the paradigm within this approach is a human with the relevant capacities in a developed form, including the capacity to operate the rights constructed on the dignity base, then many born humans (young and old alike) will be excluded;and the unborn will also be excluded. This does not mean that human dignity as empowerment has no resource to protect the interests of such excluded humans but the protection cannot be in the form of a direct right. In other words, any protective argument will have to be constructed indirectly and any 'rights' held will be enjoyed only in a secondary sense.28 Biotechnology and Human Dignity k According to Fukuyama, biotechnology raises deep and difficult concerns with regard to respect for human dignity. At one level, these concerns are of the same order as those found in relation to information technology. Bioethics has become almost synonymous with a n insistence that the biosciences and their associated technologies must respect human rights and, concomitantly, the importance of informed consentF9 Indeed, in some cases, such as the circulation of genetic information, biotechnolo& gives rise to the very same privacy concerns that we find in relation t o information technology.30It should not be thought, therefore, that the 2sSeefurther D Beyleveld and R Brownsword, n 12 above. 2 9 ~ oarnalysis of the necessity and sufficiency of consent as a justificatory reason within a human rights framework, see D Beyleveld and R Brownsword,Consent in the Law (Englewood Cliffs NJ,Prentice Hall, forthcoming). 30CfG Laurie, Genetic Ptimcy (Cambridge,Cambridge University Press, 2002).
Techno-Regulatim, H u m Rights and Human Dignity 213 conception of human dignity as empowerment has no purchase on biotechnology. Nevertheless, biotechnology invites another stream of dignitarian concern; and it is this strain of thought that we must isolate. In the most recent bioethical instruments - reflecting the pressure for at least a semblance of consensus in what John Harris terms 'the globali- sation of bioethics' 31 -we find human dignity increasingly articulated as a limiting principle. For instance, the Preamble to the Council of Europe's Convention on Human Rights and ~iomedicine?r~equires its signatories to resolve to take such measures as are necessary to safeguard human dignity and the fundamental rights and freedoms of the individual with regard to the application of biology and medicine. Similarly, the Preamble to UNESCO's Universal Declaration on the Human Genome and Human ~ i ~ h t ssta?te~s that while research on the human genome and the resulting applications open u p vast prospects for progress in improving the health of individuals and of . . humankind a s a whole . . [it is imperative] . . that such research should fully respect human dignity, freedom and human rights. Even in the relatively technical EC Directive on the Legal Protection of Biotechnological InventionsM(which deals inter alia with the vexed question of the patentability of biological material, including copies of human gene sequences), the need for patent law to respect dignity is emphasised.35Insofar as these ringing declarations in favour of human 31J Harris, 'Introduction: the Scope and Importance of Bioethics' in J Harris (ed), Bioethics (Oxford, Oxford University Press, 2001) 5-7. 32ThisConvention is sometimes referred to as 'the Bioethics Convention'. Its full title is Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, 19%. 3 3 ~ h iDs eclaration, adopted unanimously at the 29th Session of the GENERAL CONFERENCEon November 11, 1997, was the result of more than four years work camed out by the International Bioethics Committee of UNESCO.On 9 December, 1998, the United Nations General Assembly adopted Resolution A/RES/53/152 endorsing the Declaration 3~irective1998/44/EC; 119981OJL213/13. 3 5 ~ e ee,g, Recital 16, according to which 'patent law must be applied so as to respect the fundamentalprinciples safeguardingthe dignity and integrity of the person.' See too, Recital 38, which provides: Whereas the operative part of this Directive should also include an illustrative list of inventions excluded from patentability so as to provide national courts and patent offices with a general guide to interpreting the reference to ordre public and morality; whereas this list obviously cannot presume to be exhaustive; whereas processes, the
214 Roger Brownsword
dignity simply reinforce the demand that human rights should be respected, they say little that is new. However, the new turnhere is the articulationof a rival conception of human dignity, namely 'human dignity as constraint'. There is more than one pathway to this conception of human dignity; but, in practice, it appeals to a coalition (a di 'tarian alliance so to speak) of Kantians, Catholics and communitarians.&mously, for Kantians,
Every human being has a legitimate claim to respect from his fellow human beings and is in turn bound to respect every other. Humanity itself is a dignity; for a human being cannot be used merely as a means by any human being.. .but must always be used at the same time as an end. It is just in this that his dignity (personality) consists, by which he raises himself above all other beings in the world that are not human beings and yet can be used, and so over all things. But just as he cannot give himself away for any price (this would conflict with his duty of self-esteem), so neither can he act contrary to the equally necessary self-esteem of others, as human beings, that is, he is under obligation to acknowledge, in a practical way, the dignity of a humanity in every other human being. Hence there rests on him a duty regarding the respect that must be shown to every other human being. 37
These remarks, if taken literally, are a n open invitation to claim that
commodification of the human body -whether in the form of commerce
in human organs or tissue, prostitution, surrogacy for profit, or patenting
.. human genes -compromises human dignity;3sand the new dignitarians
are happy to add to this list. Typically, then, human dignity a s constraint also condemns sex selection and positive (eugenic) gene selection, germ-
>4 4
G line gene therapy, embryo research and abortion, euthanasia and assisted 4 suicide, genetic discrimination,and (perhaps top of its current list) human 1;
reprodu&ve cloning. The List, though, is h&dy dosed; and there surely will
be additions as technology opens up new bicmptions and opportunities.
uses of which offend against human dignity, such as processes to produce chimeras from germ cells or totipotent cells of humans and animals, are obviously also excluded from patentability.
e L Generally, on Morality Clauses
the Directive, see D Beyleveld, R Brownsword, and M Llewelyn, 'The of the Directive on the Legal Protection of Biotechnological Lnventionsr
Conflict, Compromise and the Patent Community' in R Goldberg
J Lonbay (eds),PharmaceuticalMedicine, Biotechnology,and European Law (Cambridge,
Cambridge University Press, 2000) 157.
36Generally,see J Rendtorff and P Kemp, Basic Ethical Principles in European Biorthics
Biolazo (Vol I: Autonomy, Dignity, Integrity and Vulnerability) (Copenhagen, Centre for Ethics *%:
and Law, 1999).
3 7 ~Kant, The Metaphysics of Morals (translated and edited by M Gregor) (Cambridge, Cambridge University Press, 1996)(firstpublished 1797)209.
'4 1
38Comparethe assault on the proposition that informed consent is a sufficient justification in 0 O'Neill, Autonomy and Trust in Bioethics (Cambridge,Cambridge University Press, 2002), 4
esp at 147-9.
Techno-Regulation, H u m Rights and Human Dignify 215 Many commentatorshave little time for thisconceptionof human dignity. The fact that its proponents can so readily target practices as compromising human dignity invites the accusation that some fancy rhetoric is being wrapped around some fairly primitive (and conservative) inclinations and intuitions-such appeals to human dignity, as Dieter Birnbacher has aptly observed, seem to be little moE than a 'conversation stopper'.39 If the new dignitarians are conversation stoppers, they are also conduct stoppers. However, when speaking to the regulatory agenda, they are more interested in the question of what should be prohibited rather than of how the prohibition should be made effective. If we think of human dignity as constraint as offeringan account of ordre public, it tends to do so without the dimension of (procedural)due process that has been very much to the fore in the firstgeneration of human rights supported by the empowerment conception of human dignity." When we turn to matters of regulatory opportunity, this difference between the rival conceptions is of some sigruficance. In the larger picture, we might expect the globalisation of human rights to overcome the dignitarian conception, especially if the emergence of the latter owes something, as Gregory Stockputs it, to 'European sen~itivities'.~~ And, in any event, so long as bioethics is a secular discipline, thisparticular articulation of human dignity might yet fall away as quickly as it has asserted itself. After all, it is a mere thirty years since philosophers could write that human dignity 'seems to have sufferedthe fate of notions such as virtue and honor (sic), by simply fading into the past'.42 Nevertheless, there is some reason for thinking otherwise. In particular, neither utilitarian nor human rights perspectives give much support to the interests of conservatism, constancy and stability. And, as the pace of biotechnology accelerates, we should not underrate the felt need to find a way of registering our concern that we should at least have the opportunity to hang on to those parts of the human condition that are familiar. Admittedly, we might not think that constraint for the sake of constraint (or human dignity in service of conservative interests) has much to recommend it but, as we have remarked earlier, even those who support 39DBimbacher, 'Do Modem ReproductiveTechnologiesViolate Human Dignity?' in E Hildt and D Mieth (eds),In VitroFerfilisation in the 1990s (Aldershot,Ashgate, 1998)325. To similar effect, see, too, H Kuhse, 'Is There a Tension Between Autonomy and Dignity?' in P Kemp, J Rendtorff, and N Mattson Johansen(eds),Bioethics and Biolaw Vol 11: Four Ethical Principles (Copenhagen, Rhodos International Science and Art Publishers and Centre for Ethics and Law, 2000) 61 at 74; and J Harris, Clones, Genes, and Immortality (Oxford, Oxford University Press, 1998) at 31. 40Foran analysis of 'ordrepublic' in the context of exclusion from patentability under Article 53(a)of the European Patent Convention, see D Beyleveldand R Brownsword,Mice, Morality and Patents (London,Common Law Institute of Intellectual Property, 1993).However, at that time (1993),the idea of compromisinghuman dignity had not crystallised so clearly as is the case now. 41G Stock, Redesigning Humans (London,Profile Books, 2002) at 13. 42MPritchard, 'Human Dignity and Justice'(1972)82 Ethics 299, at 299.
216 Roger Brownsword the empowerment conception of dignity will do well to be sensitive to the need for self-restraint (and, possibly, regulatory constraint) for the sake of preserving a context in which autonomy can flourish. If this is so, a further alliance, between the conservative elements of dignity as constraint and the conserving elements of dignity as empowerment, may form to resist rapid application of new biotechnologies. Are there Different Reference Points for the Idea that Human Dignity Should not be Compromised? When we say that human dignity is compromised or not respected, we do so by reference to a particular conception of human dignity. Our judgments are, thus, relative to a particular critical standard. But, each conception (critical standard) itself operates with a distinctive point of reference. One such reference point, as in the UDHR, is the idea that human dignity speaks to what is special or specific about humans, that is to say, what is intrinsically and universally distinctive about humans. As Fukuyama himself puts it, the demand made in the name of human dignity is one for equal recognition which implies 'that when we strip all of a person's contingent and accidental characteristics away, there remains some essential human quality underneath that is worthy of a certain minimum level of respect.. This reference point is to be contrasted with the idea that human dignity speaks less to what is special about + humans qua humans and more to what is special about a particular &; community's idea of civilised life and the concomitant commitments of its members. Here, appeals to human dignity draw on what is distinctively valued concerning human social existence in a particular community indeed, on the values and vision that distinguish the community as the particular community that it is and relative to which the community's . members take their collective and individual identity. Now, in principle, each reference point may be linked to both hum* dignity as empowerment as well as human dignity as constraint. In practice, though, whereas the former tends to be closely associated with "4 human rights movements aimed at giving individuals the opportunity-td flourish as self-determining authors of their own destinies, the latter (as . expressed by the dignitarian alliance) combines a (Kantian) view of what is distinctive about humans (their dignity) with views about what define; life as civilised (and, thus, respectful of human dignity) in a particular community. 43n10 above at 149.According to Fukuyama, although 'many would list human reason and human moral choice as the most important unique human characteristics that give our species dignity, I would argue that possessior~of the full human emotional gamut is at least as important, if not more so' (p 169).
Techno-Regulation, H u m n Rights and Humn Dignity 217
Fukuyama's Conception of Human Dignity
Where does Fukuyama's version of human dignity fit into all this? Fukuyama rejects the idea that the essence of humanity (which grounds dignity) can be reduced to any one capacity, such as the ability to reason, or communicate, or make moral choices, or the like. Instead, he suggests that human dignity refers to a complex of such capacities including a range of characteristically human emotion^.^ Most importantly, it is the survival of this range of emotions, the human emotional gamut, that is put at risk by a utilitarian-inspired biotechnology. Thus: That aspect of our complex natures most under threat has to do with our emotional gamut. We will be constantly tempted to think that we understand what "good" and "bad" emotions are, and that we can do nature one better by suppressing the latter, by trying to make people less aggressive, more sociable, more compliant, less depressed. The utilitarian good of rninimizing suffering is itself very problematic. No one can make a brief in favor (sic)of pain and suffering, but the fact of the matter is that what we consid- er to be the highest and most admirable human qualities...are often related to the way that we react to, confront, overcome, and frequently succumb to pain, suffering, and death. In the absence of these human evils there would be no sympathy, compassion, courage, heroism, solidarity, or strength of character. A person who has not confronted suffering or death has no depth. Our ability to experience these emotions is what connects us potentially to all other human beings, both living and dead.45 These remarks do not map straightforwardly onto either the empower[ ment or the constraint conception of human dignity. Without claiming that the following is indisputably the best interpretation of Fukuyama's position, it is at least a plausible reading. At the time of the Enlightenment, two conceptions of human dignity were common. One was the universalist Kantian view that attributed dignity to each human intrinsically; the other was a hierarchical, rankrelated, view, the so-called dignity of the nobles, against which Kant was reacting.% According to this latter view, dignity was not a quality possessed by all humans; it was only those of noble status who were so lucky. Giving this notion an interpretation that has some meaning for modern societies, we might distil from the dignity of the nobles a virtue ethics that values just the kind of attitude to which Fukuyama refers - that is, the development of a character that prepares one to deal with
&at 172-3. See, too, the concerns of the Nuffield Council on Bioethics, Genetics and Human
Behaviour (London,October 2002) with regard to the medicalisation of conditions within the
'normal' range of behaviour.
%see M J Meyer, 'Introduction' in M J Meyer and W A Parent (eds),The Constitutwn of Rights:
Human Dignity and American Values (IthacaNY,Cornell University Press, 1992)1,at 4.
218 Roger Brownszuord adversity in such a way that the right balance is struck between seeking to overcome and s u ~ c u m b i n gP. ~ut~ting it in these terms, Fukuyama might ask whether the exemplars of this kind of dignity, Socrates and Mandela for instance, would be able to express these qualities in an environment where biotechnology has minirnised adversity. If we read Fukuyama in this way, it is not difficult then to relate such a virtue ethics to the general support that he gives to human rights (and by implication human dignity as empowerment). Under the empowerment conception, humans have a right to the kind of context in which they can operate as autonomous actors; and, importantly, as Joseph Raz has suggested, autonomy implies the provision of a context offering more rather than fewer option^.^ On this basis, we might oppose a technical fix for adversity, not because it suits a great many humans who now prefer the easy life, but because it removes an option for some who may prefer an environment that allows for the emotional gamut to operate. Biotechnology, in other words, should be available to fix things for those who so choose; but, so far as possible, we should permit those who do not so choose to do things their own way. For example, it would be consistent with autonomy to allow those couples who so wish to sex-select and screen their offspring, thereby avoiding disappointment; but those who prefer a riskier and less controlled engagement with reproduction should also be allowed to pursue such an option.49 If we interpret Fukuyama in the way sketched here, we can treat his position as a coupling of the empowerment conception with a virtue ethics that leaves some space for those who prefer not to join in the biotechnological revolution. And, this leaves the two principal conceptions of human dignity intact as the main contenders. Competing Conceptions of Human Dignity and the Regulatory Challenge What does this distinction between human dignity as empowerment and human dignity as constraint signify with regard to the regulatory challenge? Most immediately, it introduces serious uncertainty and conflict into the guiding regulatory principle that we should capture the benefits of new technologies unless they or their products violate respect for human dignity. The uncertainty in question is whether we should set our limits by reference to human dignity as empowerment or by reference to *4 7 ~ f D, Beyleveld and R Brownsword, n 12 above. J Raz, The Morality of Freedoni (Oxford,Clarendon Press, 1986). 49C~mpartehe preference stated by H Putnam in 'Cloning People' in J Burley (ed),The Genetic W l u t i o n and Human Rights (Oxford,Oxford University Press, 1999) 1, and the overwhelming opposition to sex selection for non-medical social reasons revealed in the Human Fertilisation and Embryology Authority, Sex Selection: Optionsfor Regrilatioti (London,November 12,2003).
Techno-Regulation, Human Rights and Human Dignity 219
human dignity as constraint. The conflict is that these conceptions of
human dignity do not yield matching regulatory benchmarks: what
appears to be a case of over-regulation from one dignity perspective may
well seem to be a case of under-regulation from the other. Suppose, for
example, that human reproductive cloning were thought to present no
safety issues. Then, from the standpoint of human dignity as constraint,
because human reproductive cloning is regarded as compromising
human dignity, it should be prohibited; failure to do so would be a case of
under-regulation. By contrast, from the standpoint of human dignity as
empowerment, it is arguable that regulation should take a qualified
permissive stance; outright prohibition would seem to be a case of over-
regulation. Similarly, suppose that the question was whether or not to
permit genetic testing or genetic information to be used by employers and
insurers. Whereas proponents of human dignity as constraint might argue
for an outright prohibition, proponents of human dignity as empower-
ment would almost certainly see this as an over-regulatory response -
instead they would argue that such information (or testing) should be
available for use provided that human rights were respected (and provided
that abuses were compensated, possibly by the tort system).50
Without uncovering the problem of the rival conceptions of human
dignity, we will misdirect ourselves into thinking that the limits of regula-
tion are more straightforward than they are. Even if we can agree on the
conception of human dignity towards which regulation should be orien-
tated, we still have a very long way to go. Iit particular, we need to think
about how interventions at any point within the 'regulatory range'
(whether in the form of prohibition, permission, or fa~ilitationm)~ig~ht be
rendered effective as well as about optimal regulatory design (because,
even if we agree on our criteria of legitimacy, the processes by which we
make our regulatory judgments are an issue in their own right). It is to
these questions of effectiveness and design that we now turn.
I11 REGULATORY CHALLENGE 11: EFFECTIVENESS AND OPTIMAL DESIGN This part of the paper has a dual relevance, both completing our sketch of the regulatory challenge and initiating a sequence of ideas that brings us to matters of regulatory opportunity. Two claims are central here.
5 0 B~rownsword, 'Human Dignity as the Basis of Genomic Torts' (2003) 42 Washbum Law
Review 901; and D F Partlett, 'Misuse of Genetic Information: The Common Law and
Professionals' Liability' (2003)42 Washbum Law Review 489.
51As, rather obviously, with e-commerce; and, less obviously, with the granting of patents.
On the 'regulatory range', see RBrownsword, 'Regulating Human Genetics:New Dilemmas for a New Millennium' (2004)12 Medical Law R k 14.
220 Roger Brownsword First, given that regulation in local settings enjoys only limited success, we should not expect this to change sigruficantly once we move from local to regional and global arenas. Secondly, some matters are easier to regulate than others.52On the face of it, new technology does not present itself as one of the simpler cases of regulability. For, there is not a natural culture of compliance in this field (indeed, one might believe that there is considerable regulatory resistance both on the part of those with commercial interests in the development of the technology as well as on the part of those wishing to access the technology); and fast-moving technology represents one of the most complex challenges at the level of regulatory designs3 Jumping ahead to matters of regulatory opportunity, the sequence of ideas continues with the thought that, if we judge that traditional forms of regulation largely do not work, we might think that our regulatory ocial engineering needs more technical assistance. If we take a decisive turn to technology (especially to techno-regulation), we will again confront the question of what it means to respect human dignity. Before we get to this question, however, we must speak to the matters that concern us in this part of the chapter: namely, the limits to effective regulation in general and the difficulties of regulating the new technologies in particular. The Limits of Effective Regulation If we knew how to regulate effectively in local settings, then we might have a manual to guide us in larger regional and global arenas. Alas, regulation in local settings is hardly a story of runaway success.54Put crudely, where regulation runs with the grain, or a predisposition to comply, ,ocal law will enjoy a measure of success; but, where it runs across the grain, encountering economic or cultural resistance, it will do much less Whether one explains this limitation in terms of systems theory 52Generally,see L Macgregor, T Prosser and C Villiers (eds), Regulation and Markets Beyond 2000 (Aldershot, Ashgate, 2000). 53CompareM Feintuck, Media Regulation, Public Interest and the Law (Edinburgh, Edinburgh University Press, 1999)for the problems of regulating for the public interest in the context of powerful countervailing (and global) commercial interests, the importance attached to consumer choice, and a rapidly developing new media technology. 54See,eg, R Danzig, 'Towards the Creation of a Complementary Decentralized System of Criminal Justice' (1973) 26 Stanford Law Revim 1(for the view that criminal justice systems largely fail to control or to correct; and D Garland, The Culture of Control (Oxford, Oxford University Press, 2001)).Within the 'regulation literature', it is now a commonplace that 'command and control' hierarchical law does not work: see, eg, the very helpful overview i11 J Black, 'De-centring Regulation: Understanding the Role of Regulation and Self-Regulation in a "Post-Regulatory" World' (2001)54 Current Legal Problems 103. 5 5 ~ e ee,g, I Jenkins, Social Order and the Limits of Law (Princeton NJ, Princeton University Press, 1980).
and Tm %carts, When 1 mede; aac& law is 1, Ever effectiv tally in gence t Esulat Egula t are fm look ev Regula In wha we can First zones ( fromth others t are lil;~ %G- G Teubn 57Cf, M Europe( 58The H of Valer Valencia
Techno-Regulation, Human Rights and Human Dignity 221 and Teubner's regulatory trilemma, or in terms of gaps, counter-cultures, 'hearts and minds' or unintended effects, it is an all too familiar problem.56 When local regulation attempts to go regional, these problems do not recede; and as regulation assumes global aspirations the limitations are exacerbated and, if anything, multiply. We might say, therefore, that global law is local regulatory limitation writ large. Even where we might think that global regulation is reasonably effective, its architecture is not at all self-evident. We find mixes of vertically integrated nested regulation working alongside horizontal convergence and co-operation. We also find harbours, havens and holes in the regulatory network -all of which must give us pause in relation to any regulatory aspiration that moves beyond the local. However, where we are focusing on the regulation of rapidly developing technologies, things look even more challenging, even more complex.
Regulating Technology
In what sense does regulating technology, in a global regulatory context, represent a more complex challenge?Amongst the strands of difficulty, we can mention the following. First, we cannot assume that there will be agreement in all regulatory zones (local, regional, and international) as to the benefits to be derived from the technologies (in some places, techno-optimism will prevail, in others the mood will be one of techno-pessimism).57In consequence, we are likely to find different regulatory thresholds in different societies. Michael Kirby has put this point in the following way:
['Tlhe achievement of effective global regulation of a pervasive scientific
development is extremely difficult to attain. Quite apart from the different
interests of different societies, there are often different starting points for the
very idea of regulation. In some societies, the view is adopted that science
carries risks and should not be permitted unless scientists can demonstrate
affirmatively that there is no risk, or that the risks are negligible. In other
societies, there is a presumption that science should be free to advance and
will ultimately benefit humanity, as it has generally done in the past.58
But, even if we agree that our regulatory mind-set towards science should
be neutral (neither low benefit/high risk nor high benefit/low risk in its
5 6 ~ eGe Teubner, 'After Legal Instrumentalism?Strategic Models of Post-RegulatoryLaw' in G Teubner (ed),Dilemmas of Law in the Weyare State (Berlin,Walter de Gruyter, 1986)299. 5 7 ~ fM, Ridley, n 15 above. And, compare the contrasting assessments in, respectively, Europe (negative)and the United States (positive)as to the benefits of GM crops. Hon JusticeMichael Kirby, 'Human Freedom and the Human Genome:The Ten Rules of Valencia' (paper given at International Workshop on Freedom and Risk Situations, Valencia, Spain, January25,1999) p 13.
222 Roger Brownsword predisposition), we still need to agree on the limits within which and technology should be permitted to operate. This takes us to the - - second point of difficulty. Secondly,following through on our discussion in Part IIofthis ,-h we cannot assume that there will be consensus as to the nature rights and human dignity, or the balance to be struck between facilitation and protection (the different attitudes towards data protection and privacy rights in the US and Europe is a case in point).59The fact that fiereilre contested conceptions of human dignity is not just a philosophical puzzle; it bean on the politics and practice of regulation, on effectiveng, as well as on legitimacy -witness, for example. the unpmedented (and as events proved, unsuccessful)Franco-German attempt to secure agreement to a worldwide ban on human reproductive cloning.a Thirdly,if there is sighcant regulatory variation from one zone to another, compliance becomes problematic for the more restrictive regimes --not kt in the sense that technology can be transferred from the more restrictive to the more permissive zones, but in the sense that the knowledge that this is so weakens the position of those regimes wishing to take a restrictive approach.61 Fourthly, where national economies need Research and Developmentin new technology, politicians will be nervous about regulation that discouages i n ~ e s t m e n tW. ~e ~have seen how much pressure was applied to pave , the way, legally speaking, for e-commerce; and the economic agenda behind the UK8sliberal regulatory framework for embryonic stem cell , research is an open secret.63Local regulation, in other words, can operate only in the shadow of whatever local political will prevails; and the -,?$ prospect of regulatory arbitrage between jurisdictions competing to host technology-based business militates against the adoption and enfo ment of regional or international minimum standards. Such considerations suggest that there will be a global patchwor regulation, ranging from outright prohibition to unqualified pe with various compromises forged along the way. However, in those p of the world where the regulation of new technologies is treated 5 9 ~ e ee,g. A Charlesworth, 'Data Privacy in Cyberspace:Not National vs Intenb Commercial vs Individual' in L Edwards and C Waelde (eds), Lm and the Internet (Oxford, Hart Publishing, 2000) 79. 60RW~lling,'UN Plan Would Ban Cloning to Create Human Baby', USA Today, 23,2002, at A3. And, for the contrasting positions taken in Europe with regard to stem cell research,see S Halliday, 'A Comparative Approach to the Regulationof Human ' Embryonic Stem Cell Research in Europe' (2004)12Medical lazu Ratieru 40. Cf M Radetzki, M Radetzki, and N Juth,Genes and lnsurattce (Cambridge,Cambridge University Press, 2003) (re offshore insurance). 62~ccordintgo [email protected]: lnnovation zi~ithCorttrols (Better RegulationTask London, 2003), at 8, by 2005, the biotechnology market in Europe will be worth $100 and will be responsible for employing some 3 million people. 631bid,at 26.
( 1 I I t ( c c t t t c t a c h E 1; b 'I it ra , '---_ 3* .'.. ";$,a R --w . ' 64 n Jo 65 2( 66 in 67 LC
Techno-Regulation, Human Rights and Human Dignity 223 serious and ongoing business, there is a further dimension to be discussed, that concerning regulatory design.
Optimal Design
Where regulatory decisions are being made about new technologies, the form and style of the regulation and its institutional array needs very careful consideration. There is a huge amount to be said about this and, once again, I can only begin to scratch the surface.64 Consider, for instance, the position taken by the Better Regulation Task Force. Here, we find a proposal for five principles of good regulation, namely, transparency, accountability, proportionality, consistency, and targeting.65Each of these head principles includes a set of sub-principles (transparency, for example, breaks down to include requirements for clarity of regulatory purpose and clear communication of that purpose, consultation, clear penalties for non-compliance, clear drafting of regulations, and information, support, and guidance for those subject to the regulation as well as time to comply); and proportionality and targeting (necessity) are geared to counteracting the tendency towards over-regulation in a risk averse society.66These principles already hint at the complexity (and, possibly, pro or ante-regulation disposition) in any attempt to develop guiding principles. However, these problems are dwarfed once it is appreciated that principles of good regulation tend to hunt in (oppositional)pairs. This major difficulty is brilliantly sketched by Michael Trebilcock and Edward Iacobucci in a paper that focuses on the design of competition law institution^.^^ Although their focus is not on the regulation of technology as such, what they say is of general application. According to Trebilcock and Iacobucci, the five key pairs of opposition are between independence and accountability, expertise and detachment, transparency and confidentiality, efficiency and due process, and predictability and flexibility. In this light, three of the principles proposed by the Better Regulation Task Force look one-sided: transparency needs to be balanced with confidentiality, accountability with independence, and consistency
64Seeeg, A Murray and C Scott,n 18above.And, for helpful regulatory 'maps', see Black
n 54 above, esp at 134-5, and C Scott, 'Accountability in the Regulatory State' (2000) 27
Ioumal of Law and Society 38.
%ee scientific research: Innovation with Controls (Better Regulation Task Force, London, 2003) Appendix C, p 36.
661bid,p 3: The UK has a pmud history of scientificresearch and innovation,but in an increas-
ingly risk averse society this is in danger of being undermined by excessiveregulation'
6 7 T~rebilcock and E Iacobucci, 'Designing Competition Law Institutions' Cambridge
Lectures, July 2001.
224 Roger B rozunsword (or predictability) with flexibility. This, however, is not yet the end of the complexity because, as Trebilcock and Iacobucci point out, many of the values 'interact with each other in polycentric, mutually reinforcing or antithetical ways. For example, accountability may be antithetical to administrative efficiency by proliferating appeal or review processes, while expertise may enhance administrative efficiency. Confidentiality and flexibility may be antithetical to due process, but due process in turn may be in tension with expertise.'68 When we begin to apply these values specifically to the regulation of the new technologies, we c m see why, even with the best will in the world, the challenge is so daunting. For example, it is commonly remarked that regulation needs to stay 'connected'; in other words, regulation will be ineffective or inappropriate if the frame of reference for the regulation has been left behind by the technology. This implies that regulation needs to incorporate a degree of flexibility or open-endedness; that regulation should, wherever possible, adopt 'technologically neutral' strategies;69 that regulation should be interpreted purposively;70and that soft-law71or light regulation7*might sometimes work better than hard or hard-wired confining law.73However, all these features geared for connection and flexibility militate against predictability and consistency. Equally, if connection is maintained by regular review of legislation,'4 the price to be 6Bat 9. 6 9 ad~voca~ted, for instance, in relation to electronicsignatures (see eg, P Samuelson, 'Five Challei~gesfor Regulating the Global Ii~formatioSi~ociety' in Marsden (ed),n 3 above, 316, at 320-1) and electronic money, 'OAS exemplified by the approach of the appeal courts in the Pro-Life Alliance case: see R v Secretary oj Statefor Health, ex prte Bruno Qltintavalle (011 beltalfof Pro-Life Alliailce) 15November, 2001 (Crane J); R (Qtiintavalle) v Secretary of Stntefor Health [2002]EWCA, 18January 2002; [ZOO31 UKHL 13, 13 March, 2003. For discussion, see D Beyleveld and S Pattinson, 'Globalisation and Human Dignity:Some Effects and Implications for the Creation and Use of Embryos' (above, this volume chpl2). Similarly,see the purposive approach of the Court of Appeal in R (Quintavalle on behaljojCommalt on Reproductive Ethics) v Hlrman Fertilisution and Embryology Authority [2003]EWCA Civ 667. For discussion of this interpretive approach, see R Browi~sword,n 51 above; and for detailed analysis of the latter, see R Brownsword, 'Reproductive Opportunities and Regulatory Challenges' (2004)67 Modern laro Review 304. 71On the soft law approach to the regulation of genetic testing, see P Gannon and C Villiers, 'Regulation of Genetic Testing' in L Macgregor, T Prosser and C Villiers (eds), n 52 above, 125at 130. 72Seeteg, J Huntley, P Carlyle, and J Caldwell, 'Competition in the Telecommunications Sector' in L Macgregor, T Prosser and C Villiers (eds), n 52 above, 99 at 119 (for the insight that the technology itself ii~troducesan element of competition, driving out the need for ex ante regulation and encouraging a 'light touch at the tiller'). 73~eee,g, ScientiJic Research: Inttovatiotr rilitlr Cotztrols (London, Better Regulation Task Force, 2003) at 5 on the 'mismatch' between the creative and exploratory nature of scientific research and regulation that tries to order the future but serves only to close off avenues of inquiry. 7 4 ~ eiebid at 31 where the Task Force recommends a three-yearly review for the legislation regulating research on embryonic stem cells.
Techno-Regulation, Human Rights and Human Dignity 225 paid is a period of regulatory uncertainty which, arguably, serves to chiU investment and research initiatives." Similarly, regulators charged with dealing with the latest technology must have expertise in their own right or, at least, access to expert advice76but without this impairing detachment; we also want regulators to be positioned to give quick decisions but without this opening them to the accusation of failing to give the matter full consideration. Again, as recent experience with the HFEA has highlighted, the demand for accountability can become insistent where an independent regulatory body moves ahead of popular opinion." Standing behind these particular design problems, there is a more general issue. In some parts of the world, it would be no exaggeration to say that there is now a crisis of confidence in both the practitioners and the custodians of new technology; scientists and regulators alike are no longer trusted. How is this breakdown in trust to be repaired? How are trusted institutions to be re-built? As Onora O'Neill has astutely observed, we can introduce processes that are designed to manifest trustworthiness (processesthat are geared for transparency and accountability and the like)but this does not necessarily engender trust.78Paradoxically, procedures that are designed for trustworthiness might contribute even more to the breakdown of trust. The lesson of all this is clear: if regulatory institutions are to enjoy the trust and confidence of the public (where there are concerns about the technology) as well as meeting the demands of their political and technological stakeholders, there are major design challenges ahead.79 7 5 B~rownsword, 'Stems Cells, Superman, and the Report of the Select Committee' (2002) 65 MLR 568. 7 6 Jus~tice~Stephen Breyer has said, 'in this age of sciencewe must build legal foundations that are sound in science as well as in law' (1998)280 Science 537at 558. However, experts all too easily become agents for regulatory capture or compromise: see eg, S Boseley, 'WHO "Infiltrated by Food Industry"' The Guardian, January 9,2003, p 1(remarking on the easy movement of toxicologists between private firms, universities, the tobacco and food industries and international agencies). "see S Boseley, 'MPs Hit at Fertility Watchdog over Designer Baby' The Guardian, July 18,2002 780O'Neill,Autonomy and 'T)ust in Bioethics (Cambridge, Cambridge UniversityPress,2002), Ch.6. 79~f,Kirby, n 58 above at 1619: Without global institutions, talk about prohibitions, regulations and moratoriums will be just that: talk. The absence of effective inhibitions amounts to a permit for science to go where any individual researcher chooses... Ultimately, we require effective institutionsof regulation and lawmakingwhich render the genomic scientist and..t.hOenteecohfntohloegbiisgt,gleisktecehvaellreynogneesetloset,haenfsrweeedroambleoftohtuhme alanwit.y in the coming centu- ry will be to build more effective national and international institutions which can respond with appropriate speed and expertise to the challenges of science and technology.
226 Roger Brownswod IV REGULATORY OPPORTUNITY, TECHNO-REGULATION, AND HUMAN DIGNITY In all dimensions, the regulatory challenge is a formidable one. However, the challenge of new technology is also an opportunity. The question that now presents itself is how we might respond to a situation in which, on the one side, there is a record of regulatory failure (regulatory ineffectiveness), but on the other side there is the prospect of employing new technologies to much greater regulatory effect. Is this an opportunity to be seized? Regulatory Attitudes: From Defeatism to Perfectionism Let us take stock with Fukuyama. Fukuyama contends that 'pessimism about the inevitability of technological advance is wrong, and it could become a self-fulfillingprophecy if believed by too many people. For it is simply not the case that the speed and scope of technological development cannot be c o n t r ~ l l e d .T' ~o ~be sure, in the absence of regulatory intervention, technology can advance at its own pace -at any rate, it can do so subject to any popular resistance (such as we have seen in relation to GM crops and GM food).On the other hand, Fukuyarna concedes that: [N]o regulatory regime is ever fully leak-proof, and if one selects a sufficiently long time frame, most technologies end u p being developed eventually. But this misses the point of social regulation: no law is ever fully enforced. Every country makes murder a crime and attaches severe penalties to homicide, and yet murders nonetheless occur. The fact that they do has never been a reason for giving up on the law or on attempts to enforce it.81 So, we have pessimists and we have realists. However, whether we are pessimistic about traditional forms of regulation or realistic about their limitations in a global context, or in the face of new technologies, or both, the critical question is how we respond. One response is, in effect, to abandon regulation (resigning ourselves to a regulatory race to the bottom and the prospect of technological might dictating what is right): A second response is to try at least to hold the regulatory line, concentratl; ing resources on the most serious violation^.^^ However, the response thht is particularly relevant to this discussion is one that might take a radically fresh look at traditional regulatory strategies -in particular involving a 80n10 above, at 188.This is echoed by Kirby, n 58 above at 19: 'This is no time for despair, resignation or pessimism. It is an exciting time for science. But it is, equally, an exciting time for bioethics and law.' 81 n 10 above, at 189. 8 2 ~ Pf erri 6, at n 18 above, at 160, for a dispassionate analysis of what we can reasonably expect from our regulators.
Techno-Regulation,H u m Rights and Human Dignity 227 I turn to new technology to assist our regulatory projects. To respond in this way, regulators would not need to be perfectionists who aspire towards zero-tolerance and total compliance (although this might help). All that it would take would be the birth of a breed of regulators, willing to invest heavily in regulatory technologies, and to think creatively about how technology might improve regulatory effectivene~sI.f~t~here were such a birth, and if the spotlight were on compliance rather than detection, then we would need to think hard about where this new regulatory path might lead us. The Regulatory Learning Curve: Towards Techno-Regulation Regulators surely will learn from their experience of seeking to regulate the new technologies. They will understand more about the strengths and weaknesses of traditional forms of regulation as they will come to appreciate the potential of employing the new technology itself in a regulatory role -not merely to regulate the primary users of the technology (in the way, for example, that privacy enhancing technology might be deployed for the protection of Internet users, or filtering technology designed into mobile phones with Internet access so that children do not have access to chat rooms, pornography and gambling sites)" but far more broadly (in the way that genetic profiling, CCTV, computer mapping of crime, monitoring and tagging, and so on are already used in the criminal justice system).The speculation is that, alongside traditional forms of regulation, whether concerned with preventive channelling or dispute settlement, we will find new forms of technologically assisted regulation being piloted and adopted.85Once this happens, the technological revolution beyond the law will have initiated a technological revolution within the law. 8 3 ~ fEbyle n 8 above. At 204, Boyle remarks: '[qhe idea that the technological changes of the digital revolution are always outside the control of the state seems unproven. In fact, the state is working very hard to design its commands into the very technologies that, collectively, are supposed to spell its demise.' D Batty and J McCurry, 'Children to be Shielded from Abuse via Mobiles' The Guardian, January 12,2004, p 3. Which is likely to be more effective, a statute making the 'grooming' of children a criminal offence, or technology that denies children access to Internet sites where they are likely to fall prey to paedophiles? If we think the latter, we are already thinking like the new breed of regulator. g5~enerallys,ee Black n 54 above at 137-8.Recent suggestionsinclude the use of scannable miaoscopic computer chips embedded in high value bank notes (to combat forgery); vehicle number-plate recognition technology to enable cars to be matched against an insurance database (to combat driving without insurance); joined up information systems (following the murder of Victoria Climbie, to identify children at risk); and tagging paedophiles using global satellite positioning technology. On the first, see A Osborn, 'Computer Chip Plan to Fight Banknote Fraud' The Guardian, June 9,2003, p 4; on the second, S Coughlan, 'Driving
228 Roger Brownsword This technological revolution within the law does not manifest itself at once as 'techno regulation' (in which compliance is technologically guaranteed). We can envisage three steps towards 'techno-regulation', the time frame for which is anybody's guess. The first step is simply to employ technology within the framework of traditional 'obey or pay' forms of regulation. The technology might be designed to discourage non-compliance or to improve the chances of detection, or both; it may be pretty crude (forexample, speed bumps or other traffic calming measures within restricted areas)86 or it may be more sophisticated (for example, CCTV, smart cards, tracking devices, forensic data bases, and so on). No matter how sophisticated the technology, however, there is always the option of non-compliance and always some chance that one will not be detected. Nevertheless, there is reason to think that such technological assistance might make some areas relatively crime-free. For example, Richard Scase, in a report for the Office of Science and Technology's Foresight programme,87 sketches a possible scenario for 2010 thus: City life is very different from twenty years ago. Government initiatives in the 1990s are now bearing fruit. Urban decline has been reversed and the fear of crime reduced due to technologies which enable citizens to call police response centres directly. The tagging of those with criminal records is now also taken for granted. Crime in London is almost non-existent in the wealthy, single-person, inner city areas." Of course, not all law-abiding citizens are expected to be quite so fortunate. For those who are socially excluded or who lack the skills to reap the benefits of the information economy, crime will be confronted on a daily basis; and, from the police perspective, containment may be accepted as the limit of what can be achieved.89 The second step is to improve the technology to the point where, although the regulatory form is traditional, non-compliance will be detected and the application of the designated sanction is guaranteed. Home the Hot-Spot Danger Zone' The Guardian (Jobs and Money), September 13,2003,p 6; on the third, M Cross, 'Eyeson the Child' The Guardian (Life),September 18,2003,p 16;and, on the fourth, J Doward, '500 Paedophiles to be Tracked by Satellite Tags' The Obsmm,September 21,2003, p 1. The intmduction of 'smart' ID cards is another important indicator of this tendency: see A Travis and P Wintour, 'ID Cards are on the Way' The Guardian, November 12,2003, p 1. s6For relatively straightforward design initiatives, see N K Katyal, 'Architecture as Crime Control' (2002)111Yale Law Joirmal1039. s 7Sc~ase, Britain Towards 2020:The Changing Business Environment (London, Department of Trade and Industry, 1999).Accessed 27 ~ u g u s2t004). 881bid,p 8. 8 9 ~ ~ m p aibride, at pp 8-9.
Techno-Regulation, Human Righb and Human Dignify 229 We can imagine an 'all-seeing' 24/7 surveillance technology that enables the regulators to monitor our every action. If we fail to comply, we will be seen-and, in conjunction with database and recognition technology, we will be identified. We can elect non-compliance but we do so in the certain knowledge that we will pay.% Finally, there is the third step: traditional regulation gives way to 'techno-regulation'; rules and regulations give way to technologically secured results; in the ideal-typical case, compliance is guaranteed because non-compliance is not an option. How so? Possibly, this could be by a technical fix to the environment -for example, by taking cash as we know it out of the economy and replacing it with electronic money (which, admittedly may simply replace one kind of crime with another) - or by a technical fix to human biology (employing programmes of genetic screening and selection) or by a combination of controlling interventions applied to human predisposition and our particular environment. With techno-regulation, there is no such thing as the perfect crime; criminality is no longer an option.91
Does The World Need Techno-Regulation?
What I have just said may be dismissed out of hand as pure science fiction.92If so, what follows should be treated as no more than a thought experiment. The question to be posed is whether, relative to the two conceptions of human dignity sketched already, such use by regulators of technology is acceptable. In the lead up to techno-regulation, we can anticipate that concerns about human dignity will draw on the empowerment conception to challenge the regulators' invasions of privacy93-including, as Geoff Peck's
?3ee, eg, C Norris and G Armstrong, The Maximum Sumeillance Society: The Rise of CCTV (Oxford, Berg, 1999)Ch 10. 91Cf L Lessig, The Future of Ideas (New York, Random House, 2001) at 249:
Technology, tied to law, now promises almost perfect control over [artistic]content
and its distribution. And it is this perfect control that threatens to undermine the
potential for innovation that the Internet promises.
To resist this threat, we need specific changes to reestablish a balance between
control and creativity. Our aim should be a system of sufficient control to give artists
I i
enough incentive to produce, while leaving free as much as we can for others to build
upon and create.
9 2 ~ i~n th,e context of information and communicationstechnology, sceptics should read
L Lessig, n 4 and 91 above. And, generally, on the importance of attending to regulatory
modalities, including 'code' (ie, the architecture of a particular technology or combination
thereof), see L Lessig, 'The New Chicago School' (1998)27 journal of Legal Studies 661.
93See,eg, D Whitfield, Tackling the Tag: The Electronic Monitoring of Oflenders (Winchester,
Waterside Press, 1m;C Norris and G Armstrong, n 90 above;C Gallagher, 'Nothing to Hide,
I 1
Nothing to Fear?' Liberty (Autumn, 2003) 6; and A Gentleman, 1DCards may Cut Queuesbut Learn Lessons of History, Warn Europeans' The Guardian, November 15,2003, p 21.
230 Roger Brownsword recent successful action before the European Court of Human Rights illustrates all too vividly,94their casual handling of personal data once collected and stored.95If the all-seeing all-howing regulatory state is necessary for the protection of more compelling rights, some loss of privacy may be justified. However, serious questions about the limits of technological assistance will be raised for the context required by the conception of human dignity as empowerment can only take so much intrusion. Once we enter the realm of techno-regulation, however, the emphasis shifts to the elimination of choice, to the treatment of subjects as though they lack the capacity to choose. From the standpoint of the empowerment conception, this is surely the most fundamental kind of affront to human dignity. It throws doubt on the status of humans as bearers of both rights and responsibilities. Just as Castle, the sceptical philosopher in Walderz Tzoo, is uncertain whether the crime-free behaviourally engineered community is utopian or dystopian, the prospect of techno-regulation prompts the same equivocation and concern.96 Yet, this is such a blunt warning that it merits double-checking. Let us suppose that some action, X, is categorically contrary to human rights and a clear violation of the empowerment conception of human dignity. From the standpoint of human dignity as empowerment, there is no merit in X being permitted. Let us suppose that the only way of ensuring that X is not done is to techno-regulate it. On these premises, how can it be argued that for the sake of preserv-mg human dignity as empowerment we should not take (techno-regulatory)steps to eliminate X, itself a clear failure to respect human dignity as empowerment? Three arguments may be advanced. First, traditional regulation respects human dignity as empowerment by giving individuals the choice of compliance or non-compliance. Regulation is not neutral between, or indifferent towards, these options. Compliance is very definitely the preferred option. However, the final choice is left to individuals. Accordingly, it is implicit in this model that human dignity as empowerment values not only the right choice being made (to comply) but the process of choosing itself. Generalising this, human dignity as empowerment is committed to a framework for action in which humans may choose to do the right thing as they may choose to 9 4 ~ e cvk United Kingdom (2003) 36 EHRR 719. The Court held that the actions of a local authority in releasing CCTV footage that captured a suicide attempt by Peck engaged his Article 8 right under the Convention.And, whilst the local authority may have been wellintentioned in its desire to publicise the success of its CCTV scheme, its failure either to mask Peck's identity or to obtain his consent meant that its interference with his Convention right was disproportionate and unjustified. 9 5 ~ eteoo, 0 O'Neill, Autonomy and Trust in Bioethics (Cambridge, Cambridge University Press, 2002) at 109-110, for general cautionary remarks to this effect. 96BF Skinner, Walden Two (UpperSaddle River NJ,Prentice Hall, 1948,1976) see, esp at 161 and 227.
Techno-Regulation, Human Rights and Human Dignity 231 do the wrong thing; to take away from humans their capacity to make wrong choices is an insult to their capacity for choice, the worst kind of affront to their dignity. Moreover, the sense in which the context for moral community is a seamless web might be added to this. Quite simply, if humans can no longer harm one another (rights are guaranteed),the need for morality disappears. Why should A remind B that X is categorically prohibited if B cannot do X anyway? In other words, moral community, inspired by the conception of human dignity as empowerment, presupposes a context populated by agents who can choose and agents who can be harmed (who are, in this respect, vulnerable). Secondly, it may be objected that, even if techno-regulation could be justifiably used in the hypothesised case, it should be opposed as setting in motion a culture of diminishing respect for the importance of choice. The argument would run that, once it is accepted that it is legitimate to techno-regulate X where X is plainly wrong, it will not be long before it is accepted that it is legitimate to techno-regulate X where X is almost certainly, or probably, wrong; and so on down a slippery slope. The further we slide, the greater the risk that we mistakenly restrict options for action, and the greater damage that we do to the ideal of human dignity as empowerment. Moreover, if this is a plausible risk in a well-intentioned human-rights respecting liberal society, how much greater the risk of abuse in a society where the ruling class discovers the full potential of its techno-regulatory powers? In the face of such risks, the argument is that we would do better to steer well clear of techno-regulation - it is a temptation to be resisted. Thirdly, it may conceded that techno-regulation would be justifiably used in the hypothesised case -or, at any rate, it would be justifiable as a measure of last resort. However, it would be argued that the premises underlying the hypothesised situation are implausible and atypical. The crucial premise is that X is categorically contrary to human rights. How many such Xs are there that would be applicable in a broad spectrum of contexts? If the answer is 'relatively few', then techno-regulation would be of little practical sigruficance. Similarly, if many such (prima facie) Xs can be found but they are context-dependent, then the option for non- compliance might be too difficult to define and design out of existence - in which case, techno-regulation would be of little practical signhcance. Of these three arguments, it seems to me that, although the third points to some difficulties in putting techno-regulation into practice, it is the first two that represent the real lines of resistance. Of these two, the second is weakened by its reliance on contingencies; essentially, it is an invitation to precaution that some subscribers to the empowerment conception may decline. The main line of defence, therefore, is the first argument which, in a further twist, echoes Fukuyama by insisting that (regulatory) failure and human misfeasance is part of the larger picture of respect for human
232 Roger Brownsword
dignity as emp~werment.~A'nd, pushing this thought yet a step further, we approach Jiirgen Habermas' view that human dignity requires a context in which agents are what they are, and responsible for their actions, by virtue of genetic chance and individual choice.98In other words, human dignity as empowerment requires a particular balance of chance and choice which must be respected if instrumentally rational interventions (for more effective crime control, for more effective humans) are not to become self-de~tructive.~~ What, though, of human dignity as constraint? Does it remain silent during the march towards techno-regulation?Although the new dignitarians have a conservative bias, it is difficult to see how they can oppose techno-regulation. It is true, they can arbitrarily oppose pretty much anything they choose, by insisting that it compromises human dignity. However, to oppose techno-regulation is to oppose the elimination of choice; and to argue that the elimination of choice, or the failure to respect choice, is what renders techno-regulation inconsistent with respect for human dignity is to play right into the hands of the empowerment conception. It follows, then, that even if there were no other reasons for rejecting human dignity as constraint (which, I should emphasise, is not at all the case),lm we should anyway reject it if we reject the idea of techno-regulation.
Globalisation implies the spread of technology and its products, whether by accident or by design. Everything, including the law, is destined to
9 7 ~ fL,Lessig, n 4 above, oil the relatioilship between efficiency and value. For example, at 208-9, he says:
To identify a value that has been lost by efficiency is only to raise the question of whether in fact the 'efficiency' is efficient, or efficient to a particular end. The question is what the end should be. If the value that is lost is of value, then it may no longer be efficient to sacrifice it. Compare: driving on highways is a quicker way to get between two cities, but you lose a sense of the countryside when you drive only on interstate highways.
9 8 H~ abermas, The Ftctltre of Human Nature (Cambridge, Polity Press, 2003). 9 9 ~Hsabermas, n 98 above, puts it (at 92-3):
The morality of egalitarian universalism stands in question as such. To be sure, this :- modem form of moral consciousnessprovides the only rationally acceptablebasis for the normative regulation of action conflicts in pluralistic societies. But why shouldn't complex societies simply drop their normative foundations entirely, and switch over " to systemic(!)(or, in the future, biogenetic)steeringmechanisms?. ..Today, the relevant controversy is played out between a naturalistic futurism, committed to a technical self-optimization of human beings, and anthropological conceptions whose 'weak naturalism' has them accept the views of neo-Darwinism (and scientific views in gen- eral) without scientistically undermining or constructivisticallyoutstripping the normative self-understanding of speakers and actors, for whom reasons still count.
lOoSeethe position defended in D Beyleveld and R Brownsword, above n 12.
Techno-Regulation,Human Rights and Human Dignity 233 become more 'hi-tech'. If we allow that these developments are capable of delivering benefits, there is also agreement that technology should not be promoted in ways that undermine respect for human dignity. However, what we make of this agreement depends on what we make of human dignity. If we operate with the conception of human dignity as empowerment, we will impose human rights limits on technology, especially privacy rights; but, if we operate with the conception of human dignity as constraint, we will take a much more restrictive view. Globalisation also implies the spread of a common culture, of ideas like respect for human rights and human dignity. But, there is more than one conception of human dignity and, whilst human dignity as empowerment might seem to have better global prospects than its rival, human dignity as constraint has strong local roots. It cannot be assumed that regulators drawing on the empowerment conception will be pushing at open doors. If regulators have less common cause than they assume (because of the competing conceptions of human dignity as a limiting principle), they anyway face a daunting task in bringing forward a strategy for effective regulation in local arenas - and a fortiori in regional or global arenas. To some extent they may be assisted by new technologies which present fresh regulatory options and opportunities. Some of these options will promise improved prospects for compliance and, provided that they do not unnecessarily or disproportionately impinge on privacy (or other interests protected by human dignity as empowerment), their greater effectivenessshould be welcomed. However, if the regulatory opportunity leads to the adoption of 'techno-regulation' we have the ultimate challenge to human dignity as empowerment. What can we say, then, about the credentials of the rival conceptions of human dignity? In the current climate, the new dignitarians stand out as not liking the choices that some would like to make, particularly choices that make use of the latest reproductive and bio-technologies.101This betrays not only conservative attitudes but a preoccupation with what should be regulated (with, so to speak, a black-list for regulators) rather than how it should be regulated. By contrast, because the jurisprudence of human dignity as empowerment is so closely associated with the modern human rights movement, its principal focus is on establishing an array of human rights (political and civil) that protects the citizen against the overbearing state. First generation human rights are largely directed at due process and the Rule of Law. This jurisprudence also serves to protect l0'Recent examples indude the Pro-Life Alliance litigation: R v Secretary of Statefir Health, ex parte Bruno Quintavalle (on behalf of Pro-Life Alliance) 15 November, 2001 (Crane J); R (Quintavalle) v Secretary of State for Health [2002] EWCA, 18January2002; [2003] UKHL 13, 13 March, 2003; and that involving the Hashmi family: See R (Quintavalle on behalf of Comment on Reproductive Ethics) v Human Fertilisation and Embryology Authority [2002]EWHC 2785 (Admin); [2003] JWCACiv 667.
234 Roger Brownszoord subjects against overbearing technologists who fail to take human rights seriously and, for example, co-opt persons into research projects without securing their informed consent. In the final analysis, however, it matters not whether the technology that abuses human rights is employed in the private sector or by public regulators -it needs to be checked by reference to human dignity as empowerment. It follows that, in the face of techno-regulation, it is only the empowerment conception of human dignity that already has the script of opposition written. Finally, to return to Fukuyama, should we conclude that, once we take our lead from the empowerment conception of human dignity, we can see that the relevant concern about biotechnology, as about information technology, is that human rights are properly respected? Indeed, we should so conclude. Going beyond Fukuyama, however, what we should also conclude is that human dignity is liable to be threatened by the regulators (and their technological apparatus) as much as by the technologists whose activities they aspire to regulate.102 lo2Thiipaper is not as explicit as it might be in relating the idea of 'techneregulation' eithe~ to the literature on 'situational crime prevention' (particularly the kind of concerns raised @, A von Hirsch, D Garland, and A Wakefield (eds), Ethical and Social Pmpectiws on Situational Crime Prevention (Oxford,Hart Publishing, 2000)) nor to that on 'smart' regulation (as elaborated in N Gunningham and P Grabosky,Smart Regulation (Oxford,Clarendon Press, 1998)). However, I have picked up these threads in a discussion of the fundamental importance (for both human dignity and our understanding of law) of regulatory pitch (in particular, whether or not regulators seek to channel conduct by engaging with the practical reason of regulatees);see, R Brownsword, 'Code, Control, and Choice: Why East Is East and West is West' (2005) Legal Studies (forthcoming).

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