Benjamin Bestgen: Nootropical law



Benjamin Bestgen

In the tenth in his series on jurisprudential primers, Benjamin Bestgen looks at how the law might handle cognitive enhancements as new drugs are developed and our perceptions change.

The movie Limitless deals with a struggling author who is given a drug that vastly increases his cognitive abilities, leading to significant improvements in his work, social life and income. In the futurist comic Transmetropolitan, journalist Spider Jerusalem returns to the City after a five-year hiatus: before commencing work, he first bullies a young drug pusher into getting him any intelligence enhancer introduced during his absence.

‘Smart drugs’ (nootropics) that enhance cognitive functions like memory, creativity, attention or motivation are slowly floating into public awareness. You may have heard of students using Adderall or Ritalin to improve memory and concentration or some militaries giving Modafinil, a wakefulness and attention-enhancing drug, to pilots embarking on difficult long-distance missions.

Why does this matter for lawyers? Sure, there is the occasional all-nighter but most firms already provide free caffeine and sugar to boost lawyers’ brains.

Neuroethics is the interdisciplinary research-area investigating the good, bad, right and wrong of treatments, enhancements, manipulations or problematic invasions into the human brain and their consequences for individuals and society. Many questions around cognitive enhancement seem “decades down the line” but the same was once said about emails, air travel or mobile phones. Sugar, coffee, cocoa or spices, once rare luxuries, are now everywhere.

For lawyers, neuroethics poses some interesting questions.

New legal duties

In delict (tort), could there be a “duty to enhance”? Before disinfectants became widespread and well understood, surgeons were not commonly expected to use them. Nowadays proper disinfection is our reasonable standard and violating it may amount to professional negligence and malpractice.

Consider enhancements which increase concentration and wakefulness: could nurses, doctors, pilots or judges be expected to enhance, even if they’d prefer not to, to better protect the people who depend on them doing their job well? We expect many professionals to make compromises they might not wish to make: undertake CPD, wear protective clothing, abstain from intoxication, submit to professional supervision, stay politically neutral or get vaccinated. Being expected to take a pill to keep clients or the general public safer in certain situations may become a reasonable standard too.

Crime

A considerable percentage of prisoners suffers from mental illness or trauma which contributed to their offending. Could biomedical enhancements like oxytocin treatments (the ‘trust’/’bonding’ hormone) in rehabilitation programmes help to increase pro-social behaviour? Should prisoners have a choice whether to be so treated without adverse consequences (e.g. increased sentence or declined parole) if they refuse?

And looking at the mental aspect of crime (mens rea), would an ‘enhanced’ accused be expected to have known even better that his actions were wrong compared to a ‘normal’ criminal?

Employment

Would it amount to unjustifiable discrimination in the workplace if people who take nootropics and therefore perform better get consistently promoted over employees who don’t want to enhance?

Could employers demand that employees take cognitive enhancements against an employee’s wishes? Even without legal requirements to medically enhance, people might feel obligated to do so if they perceive that they’ll otherwise become uncompetitive, as employers come to expect enhancements: “the best performers take enhancements – and we only hire the best”.

Many people have ‘morality clauses’ in their contracts of service, detailing behaviours they are not allowed to engage in. Actors or athletes can be contractually obligated to adhere to specific diets and exercise regimes. In the future, a company might demand that a condition for being entrusted with certain roles or tasks is to adhere to an enhancing pharmacological regime – in the same way an employee might be obligated to learn a new language, technical skill or relocate to another country.

Human rights

The movie Gattaca depicts a society where humans can choose to have children through a clinical eugenics programme or “the natural way”. The medically tailored babies develop into stronger, smarter, prettier people and are consistently preferred over “natural” born individuals. Cognitive enhancements might lead to similar difficulties, with enhanced humans being consistently preferred over non-enhanced ones.

Existing inequalities might be further exacerbated too, as enhancement technologies first become available to the wealthy and powerful, on the basis of patent protections, regulation, licensing and (at least initially) limited supply.

Good or bad?

None of the above is meant to express a view on whether cognitive enhancements are good or bad. The philosopher and neuroscientist Nayef al-Rodhan advocates for a considered, forward-looking and nuanced debate as improvements in technology, including bio-medical developments, have always been pursued by humans. He notes that the Neuro-P5 – power, profit, pleasure, pride and permanency (ensuring survival and extending life) are strong motivators of human action and any technology enhancing one or several of these motivators will likely be pursued.

Lawyers involving themselves in neuroethical debates now can help to prepare our future society for the time when such questions become urgent and practical. Regulators and lawmakers are often years behind when it comes to addressing new pervasive technologies – is that something we are still comfortable with? 

The author would like to thank Mr Warren Simmons for the inspiration and helpful pointers on this topic.


Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh. 



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