法学研究 96 巻 6 号（2023：6）

Anticipated Technological Breakthroughs
and Their Possible Impact on Democratic
Legitimacy
1）

ELSI and the Political Implications of Neuroscience

TSUTSUMIBAYASHI, Ken
1

Introduction

2
3―1

The impact of Game-changing Technologies

3―2
3―3
3―4
4―1
4―2
4―3
5

1

The Moonshot Research and Development Program
Junichi Ushibaʼs Research on BMI
Ryota Kanaiʼs Project on the IoB and Think Communication
Shuntaro Sasaiʼs Project on the IoB and Think Communication
The Political Implications of Neuroscience
Legitimacy and Opinion
The Challenges Ahead for Democratic Legitimacy and Opinion
What Remains?

Introduction

Major technological innovation often affects patterns of human behavior. At
times, it could even perturb and reconfigure the organizational forms ofcollective human existence. History is full of examples where scientificinventions have induced changes in warfare, economic structure, social
arrangement, and political organization.
This article deals mainly with technologies that are still in the making,1） This article is based on the presentation given by the author at the NCCU-Keio-Yonsei
Inaugural Joint Conference on “Regional Development in East Asia: Security, Economy,
and Technology,” held at the National Chengchi University (Taiwan) on 10 January 2023.
This work was supported by JST, Moonshot R&D Grant Number JPMJMS2012.
(1)100Anticipated Technological Breakthroughs and Their Possible Impact on Democratic Legitimacy

hence the focus on “anticipated technological breakthroughs.” However, theadjective “anticipated” is not meant to imply “probable,” but rather“aspirational,” though some are more probable than others, and it is reasonable
to assume that not all the scientific projects mentioned in this article will cometo fruition. Indeed, it may transpire that some are untenable even in theory.
Notwithstanding this uncertainty, however, I believe it is worthwhile to reflect
on what some scientists are attempting to achieve in the realm of neuroscience,for this will not only shed light on the directionality of current research (much ofwhich is heavily funded by governments, universities, research institutes, and high-techfirms), but will also provide materials from which to think or brainstorm about

what such technologies, if realized, could mean for ethics, law, society, andpolitics. This in turn could provide certain insights and prospective outlooks onwhat the future might hold for humanity, thereby enhancing normativearguments about where we ought to go, as well as where we ought not to go.
While it is true that technology impacts how we live here and now, it is also
true that whatever scientific and political decisions we make today will haveconsequences that reach far into the future. Moreover, if the technology
promises to be such as one that brings about a massive change in how we see
ourselves as human beings, then there is all the more reason to think politicallyas well as from the perspectives of ELSI (ethical, legal, and social issues) about thedirectionality of where we would wish or not wish that technology to take us.
This article examines mainly, though not exclusively, technologies being
developed by certain groups within the Moonshot Research and Development
Program, a hugely ambitious research initiative launched by the Japanese
government. An initial focus will be on the debates surrounding the ethical,
legal, and social implications of such technologies. This will take the form ofreviewing journal articles that are based on interviews with three of the scientists
involved in the Moonshot Program. The interviews were conducted mainly bylegal scholars and lawyers who belong to a group that is also attached to theMoonshot Program.
Against this backdrop, I will extend the argument by including what thismight mean for politics, with particular focus on the implications for democracy.
99(2)法学研究 96 巻 6 号（2023：6）

2

The impact of Game-changing Technologies

Rapidly evolving technologies such as Big Data, SNS, AI and algorithmic tools
capable of micro-targeting are ineluctably (and most likely irreversibly)transforming the landscape of our social life. To what extent this will have an
impact on politics remains to be seen, though there are already signs thatelectoral behavior is for better or for worse susceptible to such technologicalintervention. Undoubtedly however, in recent years, public awarenessconcerning its negative impact has become more pronounced, as high-profile
incidents such as those related to the Mueller Report and the Facebook/
Cambridge Analytica scandal have exposed the risks and dangers that could2）

result from these technologies . At the same time, there are more and more
informative studies on how seemingly innocuous or even benign technologies
could have serious and far-reaching negative consequences for the organizational
3）

structure and ethos of democratic society .

Also of concern is the military application of machine or robotic
technology that is becoming ever more sophisticated with the aid of AI. Whileautomated machines may well contribute to saving lives or decreasing the riskfor human workers in dangerous conditions, they could also be weaponized toincrease the level of efficiency in taking out designated targets. Lethal
autonomous weapons (“killer robots”) such as drones are becoming increasingly
more agile, small, low-cost, and deadly. Not surprisingly, therefore, there are
now calls by the UN, EU, and some states and NGOs for a treaty to ban such
weapons, though consensus on how and at what level (whether to ban just their4）

use or also their development) has not yet been reached .

All this goes to prove the obvious point that technology is a double-edged
sword: both good and bad could result from it. Nevertheless, some technologies
2） E.g., Normann Witzleb and Moira Paterson, “Micro-targeting in Political Campaigns:
Political Promise and Democratic Risk,” in Uta Kohl and Jacob Eisler (eds.), Data-Driven
Personalisation in Markets, Politics and Law, Cambridge University Press, 2021, pp. 223―
240.
3） E.g., Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power, PublicAffairs, 2019.
(3)98Anticipated Technological Breakthroughs and Their Possible Impact on Democratic Legitimacy

are more consequential than others, and this article deals with those that could
have massive consequences for humanity at large.
In discussing the possibilities and risks related to general-purpose AI
technology, Stuart Russell (a renowned professor of computer science at UC
Berkeley who also advises the EU on regulating AI) remarked that its success could

signify “the biggest event in human history … and perhaps the last event in human5）

history.”

The same could be said of specifically neuroscience, as I hope todemonstrate in the ensuing discussion.

3―1 The Moonshot Research and Development Program
The Moonshot R&D Program is a highly ambitious scientific research initiativethat was launched by the Japanese government in 2019. With a budget of 1,000
6）billion yen over 5 years , it “aims to create disruptive innovations from Japanand promotes challenging R&D based on revolutionary concepts that are not7）

simply the extension of existing technologies.”

Since its inception a few years

ago, the program has evolved into a massive multidisciplinary research network
involving scientists and researchers from various universities, research institutes
and high-tech firms in Japan and beyond. The multifarious individual projects
within the overall scheme fall into one of the following nine categories, each of4） See the initiatives by United Nations Office for Disarmament Affairs (UNODA), United
Nations Institute for Disarmament Research (UNIDIR), United Nations Convention on
Certain Conventional Weapons (CCW), European Parliamentʼs Special Committee on Artificial Intelligence in a Digital Age (AIDA), Campaign to Stop Killer Robots, and Human
Rights Watch.
5） Stuart Russell, Human Compatible: Artificial Intelligence and the Problem of Control,
Penguin Publishing Group, 2019, p. 17. Russell delivered the 2021 BBC Reith Lectures
entitled “Living with Artificial Intelligence” (https://www.bbc.co.uk/programmes/
m001216k). There, he reiterated his view that machines more powerful than humans could
pose an existential threat for humanity. Russell also collaborated with the Future of Life
Institute to produce a short film entitled Slaughterbots to raise awareness about the risks
of weaponizing AI technology.
6） Nikkei Shimbun, 30 March 2019.
7） Cabinet Office HP, “About Moonshot Research and Development Program”
https://www8.cao.go.jp/cstp/english/moonshot/system_en.html
97(4)法学研究 96 巻 6 号（2023：6）
8）

which is defined by its goal .

Goal 1: The realization of a society in which human beings can be freefrom limitations of body, brain, space, and time by 2050
Goal 2: The realization of ultra-early disease prediction and intervention
by 2050
Goal 3: The realization of AI robots that autonomously learn, adapt totheir environment, evolve in intelligence and act alongside humanbeings by 2050
Goal 4: The realization of sustainable resource circulation to restore theglobal environment by 2050
Goal 5: The creation of an industry that will ensure a sustainable global
food supply by exploiting unused biological resources by 2050
Goal 6: The realization of a fault-tolerant universal quantum computerthat will revolutionize the economy, industry, and security by 2050
Goal 7: The realization of sustainable care systems to overcome majordiseases by 2040, in order to enjoy oneʼs life with relief and release fromhealth concerns until 100 years old
Goal 8: The realization of a society safe from the threat of extreme winds
and rains by controlling and modifying the weather by 2050
Goal 9: The realization of a mentally healthy and dynamic society byincreasing peace of mind and vitality by 2050
In terms of the organizational structure, Goals 1 to 9 each have one
9）

Program Director under whom there are several Project Managers . ProjectManagers, in turn, head research teams comprising Project Facilitators, each ofwhom also manages a group of researchers.
This article focuses on research that aims to achieve Goal 1

10）. In particular,8） https://www.jst.go.jp/moonshot/en/index.html
9） For the overall management structure (including the Governing Committee, Advisory
Board, Subcommittees, and their members), see https://www.jst.go.jp/moonshot/en/index.
html
(5)96

Anticipated Technological Breakthroughs and Their Possible Impact on Democratic Legitimacy

it tries to capture certain aspects of research pursued by the IoB (Internet of
11）Brains) team led by Project Manager Ryota Kanai, who is CEO of Araya Inc.

More specifically, I will recount and reflect on those research activities
coordinated by Project Facilitator Keigo Komamura.
Keigo Komamura is a professor of constitutional law at Keio University,
Faculty of Law and Graduate School of Law. As Project Facilitator under
Project Manager Ryota Kanai, he has established the research unit IoB-S(“Internet of Brains”-Society), the mission of which is to “explore the Ethical,
12）

Legal, and Social Issues (ELSI) on neuroscience and its social use”

. Since May

2022, IoB-S has become a project within the Keio University Global Research
13）

Institute (KGRI)

as well.

Komamuraʼs group, of which I am a member, comprises thirteen
14）

researchers (most of whom are legal scholars and lawyers). Since October 2021,

10） Program Director in charge of Goal 1 is Norihiro Hagita, Professor of Osaka
University of Arts, Art Science Department. He elaborates on the aims of Goal 1 asfollows: “To overcome the challenges of a declining birthrate, aging population andassociated labor shortage, the key is to realize a society free from the limitations of body,brain, space, and time and allow people with various backgrounds and values — such as
the elderly and those with responsibilities for nursing and childcare — to actively
participate in society. Our R&D will develop core technologies related to cyborgs andavatars, called ʻCybernetic Avatarsʼ, allowing expansion of human physical, cognitive andperceptual abilities. We will build ʻCybernetic Avatar Infrastructureʼ in the cloud whileeasing the acceptance of Cybernetic Avatars into future society.” (https://www.jst.go.jp/
moonshot/en/program/goal1/index.html) And in his “Message from PD,” he states thefollowing: “Our human-centered R&D projects on Cybernetic Avatars will support thecreation of cloud infrastructure and core technologies that enable a diverse range of social
activities via remote operation. We also intend Cybernetic Avatars to augment thephysical, cognitive and perceptual capabilities of people from various social and value
backgrounds. Cybernetic Avatars will be developed from the viewpoint of both providers
and users in future society. Therefore our R&D projects should also do basic research on
human stress caused by them, and methods to relieve this stress, while taking into accountethical, legal, social, and economic (ELSE) issues and information security. I hope theseprojects will help us adapt and adjust to a new human-centered ʻCybernetic Avatar Lifeʼ.”11） Kanai defines his project as follows: “Liberation from biological limitations via
physical, cognitive and perceptual augmentation.” https://brains.link/en/research-theme12） https://www.iob-s.com/about95(6)法学研究 96 巻 6 号（2023：6）

the group has been meeting regularly to learn and discuss about the technologies
being developed mainly by scientists in the Moonshot Program, with the aim ofascertaining their ethical, legal, and social implications. To this end, the group
has organized a series of in-depth interviews and discursive sessions involving
these scientists, and the findings are currently being published in the form ofarticles in the law journal Hougaku Seminar. Since the publication process (aswell as the sessions) are still on-going, I shall only discuss here those technologies

mentioned in the first seven of those articles.

3―2 Junichi Ushibaʼs Research on BMI
The first three articles

15）

revolve around the BMI (Brain-Machine Interface)research carried out by Junichi Ushiba, professor at Keio Universityʼs Faculty13） https://www.kgri.keio.ac.jp/en/index.html
Keio University Global Research Institute (KGRI) is directed by Yuko Kimijima, Professor of Intellectual Property Law at Keio Universityʼs Faculty of Law and Graduate Schoolof Law. She is also director of Keio Universityʼs Cyber-Physical Sustainability Center thataims “1) to create an environment to experience the actual use of CA [cybernetic avatars];
2) to organize events to discuss a sustainable society, law, and policy through cyber-physical space; and 3) to propose sustainable lifestyle, society, law, and policy using CA as a cyber-physical system.” Kimijima is also affiliated with the Moonshot Program as Project
Facilitator under Project Manager Fumio Shimpo, who is a professor at Keio Universityʼs
Faculty of Policy Management.
14） Aside from Keigo Komamura, the other twelve researchers are: Yoshinori Ohshima(Project Associate Professor, Graduate School of Law, Keio University / Attorney-at-Law), Tamami Fukushi (Professor, Faculty of Human Welfare, Tokyo Online University), Yuka Koide (Data Scientist, DIGITAL BCG JAPAN), Masatoshi Kokubo (Researcher, Graduate School of Law, Keio University), Takayuki Matsuo (Attorney-at-Law),
Satoshi Narihara (Associate Professor, Faculty of Law, Kyushu University), Tomoumi
Nishimura (Associate Professor, Faculty of Law, Kyushu University), Kunifumi Saito (Associate Professor, Faculty of Policy Management, Keio University), Machiko Sakai (Associate Professor, Interfaculty Initiative in Information Studies, Tokyo University), Masahiko Sudo (Attorney-at-Law), Ken Tsutsumibayashi (Professor, Faculty of Law and
Graduate School of Law, Keio University), Satoshi Yokodaido (Professor, Law School,
Keio University).
15） Hougaku Seminar, 807 (2022), pp. 57―70; 808 (2022), pp. 58―64; 809 (2022) pp. 56―63.
(7)94Anticipated Technological Breakthroughs and Their Possible Impact on Democratic Legitimacyof Science and Technology, Department of Biosciences and Informatics. Ushibaspecializes in neuroscience and rehabilitation medical science, and is one of theleading scientists in Japan working on BMI. He also serves as one of the SubProject Managers in Kanaiʼs Moonshot research group IoB (Internet of Brains).
The centrality of BMI in IoB research is evident from the following
statement by Kanai:
The ultimate goal of this project is to realize the “Internet of Brains (IoB),”
where the brain is connected to the Internet using brain-machine interface(BMI) technology, and can freely control CAs [Cybernetic Avatars] in cyber-physical space, where cyberspace and real space are fused together, and16）

directly communicate with other humans and AI.

Ushibaʼs research on BMI, or BCI (Brain-Computer Interface) as it issometimes called, is focused mainly on the development of a scalpelectroencephalogram-based device that can aid people in the areas ofhealthcare, sports, music, and research industries

17）. The BMI wearable headset

created by his team is slightly larger than an ordinary audio headphone and is
non-invasive, that is to say, the sensors do not penetrate the skull or the brain.
The sensors attached to the scalp detect the brainwaves that are subsequently
decoded and transmitted to machines such as robotic hands and computers
equipped with communication and cybernetic avatar appliances. By the use ofthis BMI technology, Ushiba has made considerable advancement in thetreatment of patients with brain stroke paralysis and has also succeeded increating BMI-controlled cybernetic avatars that could allow people withdisabilities to move freely in cyberspace or metaverse.
16） https://brains.link/en/research-theme17） In his project statement, Ushiba announces the following: “In this R&D project, we
will develop scalp-electroencephalogram-based brain-computer interface (BCI) technology
for everyday use. A large-scale field study will be conducted with the healthcare, sports,
music, and research industries. We will consider the social implications of AI-aided nonsurgical BCI and its application to ʻCybernetic Avatars,ʼ using evidence-based research andethical guidelines.” https://brains.link/en/interface
93(8)法学研究 96 巻 6 号（2023：6）

This technology is evolving at an exponential pace and will most likely
revolutionize medical treatment in the near future. It is also likely to have amassive transformational impact on business and other transactional conducts,
leading in turn to the transformation of peopleʼs way of life in general.
What is revolutionary about this technology is that it has the potential not
only to by-pass verbal, facial, and gestural forms of volitional expression(hitherto the only means humanly possible), but also to make explicit those pre-volitional thoughts and desires that are opaque even to the person having thosethoughts and desires. As Ushiba points out, “with the emergence of BMI, it has
become possible to by-pass oneʼs own body and informationally connect [the18）brain directly] to the outside world and the social system”.

Ushiba realizes that this technology may prove problematic in terms of
ELSI, especially if the subconscious locomotion of the brain is translated via
the BMI device directly into verbal or physical action. This becomes all themore problematic given our increasing understanding that whatever thoughts
and desires form the subconscious realm are not only diverse and often mutuallyinconsistent, but may also contradict the conscious and outwardly expressed
volition as well as the intended action.
This was indeed one of the most fervently discussed issues in Komamuraʼsgroup. A person may have various conflicting thoughts and desires, someconscious, others subconscious. A person may or may not choose to verbalize or
act upon what is consciously registered in the mind. However, in legal andethical terms, what matters is what is actually said or done. The existing societal
system is founded on the idea of free will and personal autonomy, however
intangible, fictional, and unprovable they may appear from the standpoint of
natural science. (Benjamin Libetʼs famous experiment was no doubt one of the focal
points in discussing the fictional or retrospective nature of intention and free will

19）

.)

Furthermore, it matters little what goes on in the mind, good or bad, so long as
the externalized thought and action do not transgress the rules and norms ofsociety.
Confusion or even chaos may therefore ensue from the application of18） Hougaku Seminar, 807 (2022), p. 60.
(9)92Anticipated Technological Breakthroughs and Their Possible Impact on Democratic Legitimacy

technology that translates a personʼs purported intention into action even before
the personʼs conscious decision is made. For instance, if an urge to hit someone(a kind of urge that is more often than not restrained at the conscious level) is

automatically carried out by the robotic arm, who would bear responsibility forit? (Although of course, the robotic arm can be programed not to execute desires thatwould lead to violence

20）

.)

Another point of concern is privacy and the protection of data extractablefrom the brain via BMI. Privacy and data security are already major issues ofconcern in various areas of information technology and the social network
industry, but this is likely to reach a new level of complexity and sensitivity withthe advance of BMI technology.
Ushiba is well aware of these concerns, and is himself active in formulating
ELSI guidelines. Already in 2017 he announced, together with his colleagues
around the world, three ethical guidelines for BMI research.
(1) The clarification of legal responsibility for accidents or incidents causedby BMI-induced actions (accountability)(2) The protection of neuronal data and the prevention of unauthorizedaccess to the brain (protection of personal information)(3) The promotion of social acceptance (public awareness) and advancementof ethical norms based on the swift disclosure and accuracy oftechnological information

21）

In discussing these issues with the members of Komamura group, mention19） Benjamin Libet, “Unconscious Cerebral Initiative and the Role of Conscious Will in
Voluntary Action,” Behavioral and Brain Sciences, 8―4 (1985), pp. 529―566. It was concluded from the experiment that conscious awareness of voluntary action is preceded byelectrophysiological “readiness potentials” (RPs). This experiment inspired a host of philosophers, many of whom claimed to have found a scientific proof of the non-existence of
free will. But so far, scientists and philosophers are divided as to what this experiment entails for free will.
20） This issue was discussed extensively with Kanai as well. Hougaku Seminar, 811 (2022),
pp. 52―56.
91(10)

法学研究 96 巻 6 号（2023：6）

was also made of other attempts by other concerned actors from around theworld, most notably the NeuroRights Foundation in the U.S. and theircollaborative effort with the Chilean politicians and academics who brought
about the historical constitutional amendment in Chile (the first of its kind in theworld) to protect brain activity and information from neurotechnological22）

intervention.

Many other important topics were covered in the discussions with Ushiba,
but for the purposes of this article, I should like to focus on just one more aspectof BMI that could prove potentially controversial in many ways. This is the issue
of “Think Communication,” a new method of communication that by-passes theuse of language and instead relies on the direct brain-to-brain thought
connection made possible by a cyber-mediated exchange of brainwaves. While

21） Jens Clausen, Eberhard Fetz, John Donoghue, Junichi Ushiba, Ulrike Spörhase, Jennifer Chandler, Niels Birbaumer, Surjo R. Soekadar, “Help, Hope, and Hype: Ethical Dimensions of Neuroprosthetics: Accountability, Responsibility, Privacy, and Security areKey”, Science, 356―6345 (2017), pp. 1338―1339. For further detail concerning Ushibaʼscontribution and his collaborative effort with neuroscientists and ELSI specialists fromaround the world, see the following press release by Keio University. “Three Ethical
Guidelines regarding the Rapid Social Development of Brain-Machine Interfaces Published in the Science Magazine: Research Results of an International and Interdisciplinary
Team Comprising of Neuroscientists, Ethicists, Jurists and Pedagogists” (13 July 2017).
https://www.keio.ac.jp/en/press-releases/files/2017/7/13/170713-1.pdf
22） The stated mission of the NeuroRights Foundation is as follows: “Our goal is toprotect the human rights of all people from the potential misuse or abuse of
neurotechnology. We are working to incorporate five Neuro-Rights that have been
identified as critical into international human rights law, national legal and regulatory
frameworks, and ethical guidelines.” https://neurorightsfoundation.org/
The Neuro-Rights Foundation collaborated with the Chilean politicians to accommodate
neuro-rights in their Constitution. https://neurorightsfoundation.org/chile
Ushiba also mentioned the four ethical principles proposed by a team of Japanese scientists in 2010. (1) Prohibition of the use of BMI in war and crime, (2) Prohibition of
BMI-assisted mind-reading against oneʼs will, (3) Prohibition of BMI-assisted mind-control against oneʼs will, (4) Admission of the use of BMI technology only when the benefit
outweighs the risks and dangers, and only when acknowledged by the user. See Mitsuo
Kawato and Osamu Sakura “Proposal for Four BMI Ethical Principles,” Gendai Kagaku,
471―6 (2010), pp. 21―25.
(11)90Anticipated Technological Breakthroughs and Their Possible Impact on Democratic Legitimacy

this technology is still in its infancy, and may never materialize, if successful, it
has the potential to change not only how we communicate and interact witheach other but also the nature of humanity itself. This technology was briefly
discussed during the conversation with Ushiba, but since it constitutes one of
the core themes of research in Kanaiʼs group, this will be discussed in thefollowing two sections.

3―3 Ryota Kanaiʼs Project on the IoB and Think Communication
As mentioned above, Ryota Kanai is a Project Manager of the Moonshot
Program and heads the IoB (Internet of Brains) research team. He was formerly
an associate professor of cognitive neuroscience at the University of Sussex(UK), but now conducts and coordinates research activities at a high-tech firm,
23）

Araya Inc., which he founded in 2013.

24）

During the discursive session organized by Komamura, Kanai explained

the aims and aspirations of his project in the Moonshot Program by focusing on
the idea of “Think Communication” or “Thought Cloud (Society).” He envisions
a society where people evolve into a “homo deus”-like existence25）, that is to say,beings able to live fulfilling lives free from the constraints of illness, disabilities,
senescence, and human suffering in general. There is a pictorial illustration(entitled “In 2050, people will live in a Thought Cloud Society where a personʼs brain is
directly connected to othersʼ and AI, being able to descend upon the physical world via
robots, and transforming into homo deus that joyfully engages in creativity”) with the26）

explanation of how this society might function. Disabled people as well as theaged live healthy, free and active lives, fully participating in society. Each person
is able to control several robots or cybernetic avatars (on earth and beyond) justby mental volition, thereby helping to build social infrastructure. There is also23） https://www.araya.org/en/about/company/
24） This is documented in Hougaku Seminar, 810 (2022), pp. 45―51; Hougaku Seminar, 811(2022), pp. 52―59.
25） Needless to say, “homo deus” is an allusion to Yuval Harariʼs notion of a transhumanist being described in his book Homo Deus.
26） Hougaku Seminar, 810 (2022), p. 46.
89(12)

法学研究 96 巻 6 号（2023：6）

an image of a brain in a vat with the explanation: “people are able to participate
in society as a brain or machine even after the demise of the physical body.” This
involves the concept of “mind uploading,” where “the brain function istransferred into a machine.” According to Kanai, consciousness can be reduced
to information. In a separate article, he claimed that “consciousness is no longer
something mysterious and magical” and “we are seeing AI researchers getting
27）” This, it seems, istantamount to achieving immortality, and perhaps for this reason, Kanai
closer to architectures relevant to consciousness.

describes the Thought Cloud Society as “heaven,” a place that even caters for theafterlife.
Of course, Kanai does not claim that this will happen overnight. This is along-term vision that can only be achieved as an outcome of long andaccumulative effort in neuroscience with strict ethical guidelines. Therefore,
while he is committed to creating technology that connects brains in cyberspace,he obviously does not experiment with human beings (though he referred to somescientists experimenting with animals such as monkeys). Kanaiʼs approach is to use

non-invasive BMI for discovering the mechanisms of “Think Communication.”
Moreover, to complement non-invasive BMI, he underlines the importanceof “non-contact BMI.” This is a technology that relies not on brain information
but on visual data collected from, say, facial expressions and walking patterns(with the use of facial recognition devices and motion capture cameras). By analyzing

such data with the aid of AI, it becomes possible, according to Kanai, to readthe intentions of the human subject. The data may not be as precise as thoseobtained from the brain, but they are useful enough to understand what theperson is intending to do, for instance, to pick up a glass of water and convey itto the mouth, which can then be carried out by a robotic arm.
Thus, for Kanai, the development of non-invasive as well as non-contact
BMI constitutes the first step towards realizing the Internet of Brains or Think
Communication. The second step is to improve invasive BMI technology and its
application through medical practices, but this he thinks will take a long time.
The third and final step is to achieve direct brain-to-brain communication and27） “All in the Mindʼs AI” (https://www.nature.com/articles/d42473-022-00218-7).
(13)88

Anticipated Technological Breakthroughs and Their Possible Impact on Democratic Legitimacy

the connecting of the brain with a highly sophisticated AI.
As mentioned earlier, Kanai for now relies on non-invasive BMI to explore
the mechanisms of Think Communication. One of the central aims at this stage
is to find a method for decoding the encoded (or internally represented)
perception of a person (say A) in such a way that another person (say B) could
come to perceive whatever is perceived by A directly, that is to say, through thetransfer and translation of brain signals from A to B via a machine, and without
the mediation of natural language or verbal exchange. If successful, this may
even allow subjective experience, with all its detail and vivacity, to be sharedwith another person. For instance, a person overwhelmed by the beauty of asunset may be able to communicate not just the full range of images on display
but also the sense of awe evoked.
While articulating these futuristic visions, however, Kanai does not ignore
the risks and dangers that may result from such technology, and has thus
outlined concerns about ELSI in the following way.
He says there are short-term and long-term issues. One of the short-term
issues is the protection of personal information. With the wider use of noninvasive BMI, there will be more and more brain data uploaded to the cloudsystem, thereby increasing the risk of their misuse. This can be aggravated by the
rapid rise in the commercialization of this technology. Kanai is not at all against
the idea of commercialization itself, but fears that “honest science” can becompromised if there is too much haste to monetize it. This calls for guidelines
and mechanisms for assuring safety. Kanai also mentioned that devices such as
tDCS (transcranial direct current simulations) are already easily accessible and caneven be purchased at Amazon.
As for the long-term issue, which concerns the creation of an IoB society,
Kanai thinks it is important to find ways for people to overcome their
psychological fears of invasive BMI, while guaranteeing the safety of its use.
In any case, Kanai suggests that we should start thinking about how to deal
with the externalization or exposure of inner thoughts that have hitherto
remained private and opaque. In a world where brains are directly connectedwith each other, how do you define the boundaries of an individual? What
happens when humans attain immortality by becoming a bundle of data?
87(14)

法学研究 96 巻 6 号（2023：6）

These questions, raised by Kanai, are certainly food for thought, but what
if brain data belonging to separate individuals are to be merged to create asingle entity? This question will be addressed in the next section, since it isprecisely one that is being explored by another scientist, Shuntaro Sasai, the28）third scientist invited to the Komamura session.

3―4 Shuntaro Sasaiʼs Project on the IoB and Think Communication
In addition to being a Sub-Project Manager in Kanaiʼs Moonshot researchgroup, Shuntaro Sasai is Chief Research Officer at Araya Inc., so Sasai andKanai basically work together in developing Think Communication

29）. Sasai isalso a member of the Center for Sleep and Consciousness at the University of
Wisconsin-Madison. Not surprisingly, therefore, Sasai provides similar examplesof what Think Communication might allow us to do.
A person travelling to outer space is likely to have an awesome experiencethat is hard to come by on earth. Think Communication can be used toshare this (i.e., sharing of sensation and conscious experience). It will also
become possible to communicate in its entirety the excitement induced fromwatching TV or delightful sensation from drinking Sake.
Next, imagine a meeting. There are occasions where communication
fails to occur as expected. In order to avoid miscommunication andmisunderstanding, you just have to convey your thoughts directly to the30）

other person (i.e., zero miscommunication).

Like Kanai, Sasai explains the mechanism of Think Communication interms of transferring the decoded representation of a personʼs inner thought insuch a way that it can be intelligible to another person. This involves a process28） Hougaku Seminar, 812 (2022), pp. 64―70; Hougaku Seminar, 813 (2022), pp. 54―61.
29） https://research.araya.org/member/shuntaro-sasai-phd30） Hougaku Seminar, 812 (2022), p. 64. Sasai even suggests the possibility of brain-tobrain communication between humans and animals.
(15)86

Anticipated Technological Breakthroughs and Their Possible Impact on Democratic Legitimacyof “translation,” which requires a “codebook” that allows differently organizedperceptional organs (each brain has a distinctive way of processing information) tocome to the same understanding.
Thus, one of Sasaiʼs main research activities for the Moonshot program is
to create this codebook, which he believes is possible by employing the Global
Workspace Theory. Araya Inc. provides the following account of this theory.
The Global Workspace Theory posits that the human brain is made up of anumber of modules, each specializing in a particular function, such assight, hearing, movement or language. Consciousness acts as a bridge
between these modules. We believe that we are able to act appropriately inthe real world because our consciousness is a clever coordination of several
dedicated modules. The “global workspace” is the place where the31）

information between the different modules is exchanged.

If this Global Workspace exists, so the argument goes, it would suffice only
to extract the information from this part of the brain, since all the other pieces
of information formed around various modules are connected to it in an orderly
manner.
This, again, is an approach common both to Kanai and Sasai, but whatstands out in Sasaiʼs remark is the mention of “super-consciousness,” a form of
combined consciousness created by merging the different consciousnesses ofseparate individuals.
31） https://www.araya.org/en/randd/consciousness3/
Further explanation follows: “the global workspace theory was first proposed in the 1980s
and has been supported by a number of experimental results [Bernard J. Baars, “The Conscious Access Hypothesis: Origins and Recent Evidence,” Trends in Cognitive Sciences, 6―1(2002), pp. 47―52]. Through computer simulations and other means, research has been
carried out to determine which neural circuits shape the global workspace [George A.
Mashour et al., “Conscious Processing and the Global Neuronal Workspace Hypothesis,”
Neuron, 105―5 (2020), pp. 776―798].” Mention is also made of Kanaiʼs article co-authoredwith the Research Director of CerCo (Centre de Recherche Cerveau et Cognition) inFrance: Rufin VanRullen, Ryota Kanai, “Deep Learning and the Global Workspace Theory,” Trends in Neurosciences, 44―9 (2021), pp. 692―704.
85(16)

法学研究 96 巻 6 号（2023：6）

It is well to acknowledge that in making this argument, Sasai is not sayingthat we should aim to achieve this novel state of consciousness, but rather, given
its possibility, we should think about its various implications (including risks anddangers) in the event that it may one day happen. He also warned against themisuse of brain information as BMI technology becomes more and moreadvanced and accessible, a concern (as noted earlier) that was voiced also by
Kanai and Ushiba.
However, it is interesting to note that a lot of discussions in Komamuragroup revolved around the question of what the emergence of “superconsciousness” might entail, philosophically and existentially. What happens to,say, X and Y when they merge to become Z? Will X and Y still exist or not?
What happens to consciousness? Will X, Y, and Z all remain conscious? Or will
it just be Z who remains conscious? Who will have control of the body or thebrain, and to what degree?
These questions are impossible to answer with any degree of certainty, but
Sasaiʼs position (or conjecture) is that X and Y will cease to exist once they merge
to become Z. This, he thinks, is problematic even if the process is reversible,
since in retrieving X and Y by dismembering Z, Z in turn will have to perish.

4―1 The Political Implications of Neuroscience
Thus far, we have surveyed some aspects of the research activities conducted in
the Moonshot Program and have briefly discussed what they might entail interms of ELSI. We have also noted in passing attempts by overseasorganizations to address ELSI in neuroscience. This global trend is hardly
surprising given the huge amount of attention and funding invested bygovernments, universities, research institutes, and high-tech firms from aroundthe world in developing the kind of technologies described in this article.
Research in this field and concern for ELSI are likely to increase andintensify in the future, especially in light of the breakneck speed with whichinvasive BMI devices are being developed. Experiments on animals such as rats,
pigs, and monkeys are already taking place, and recently it was reported that
Elon Muskʼs neurotechnology company Neuralink sought, though without(17)84

Anticipated Technological Breakthroughs and Their Possible Impact on Democratic Legitimacy

success, clinical-trial approval from the U.S. Food and Drug Administration to32）

implant a BMI device in human brains.

Although Muskʼs bid was rejected by the FDA, it will probably not deter
him from pursuing his project. This is most likely true of many others who are
currently working on BMI and other mind-reading technologies.
What could all this mean for politics in general and democracy inparticular? How can we avoid a dystopian future?
On one level, we could simply reiterate the old adage that it is all a matterof how we employ technology. All technologies are double-edged, so it is aquestion of making wise decisions, which calls for serious thinking about ELSI
and policy-making.
It would certainly be unwise to weaponize these technologies and use themfor purposes of war, domination or political control. In this respect, the news
that a research institute in China has claimed to have developed an AI capableof reading facial expressions and brain waves to “discern the level of acceptancefor ideological and political education” is worrying, to say the least

33）. It appears

that they did not really succeed in creating this AI, but the fact that they aimed
to do so at all (and publicly announced it, though the announcement soon
disappeared from the internet) is a cause for concern. What is more, it would benaïve to think that this could only happen in China.
This kind of incident could certainly serve as a wake-up call for thinking
about the potential dangers, and the misuse or abuse, of this technology and forthe need to formulate globally coordinated guidelines for research anddevelopment in this area.
As important as this call for attention and action is, however, this article
will focus on issues that concern the possible impact of aforementioned32） Rachael Levy and Marisa Taylor, “U.S. regulators rejected Elon Muskʼs bid to test
brain chips in humans, citing safety risks,” Reuters, 2 March 2023.
https://www.reuters.com/investigates/special-report/neuralink-musk-fda/
33） This was announced by the Institute of Artificial Intelligence at Hefei Comprehensive
National Science Center. See Angelica Oung, “China uses ʻmind-reading AIʼ to test loyalty
of Communist Party members,” The Telegraph, 4 July 2022; Didi Tang, “Chinese AI ʻcancheck loyalty of party membersʼ,” The Times, 4 July 2022.
83(18)

法学研究 96 巻 6 号（2023：6）

technologies on democratic legitimacy. This would require us to pay attention
not so much to how technologies could be misused or fall into the wrong hands,
but rather to what kind of political system or ideas people are likely to embrace
if and when the technological breakthroughs occur.
What would or could happen if scientists succeed in developing a machinethat is capable of knowing ourselves better than we know ourselves? Whatwould or could happen if it becomes possible to share directly via a machine ourthoughts and experiences with others, or even merge them to create a new
conscious unit?
Philosopher Slavoj Žižek in his recent book, Hegel in a Wired Brain, asks
precisely these questions, and answers: “It is clear that contemporary liberal
democracy with its individualism is doomed in this case.”

34）

Similarly, historianand author of Homo Deus, Yuval Harari, asserts that “liberalism will collapse
on the day the system knows me better than I know myself.”

35）

While Žižek
36）

further warns that this could spell the end of freedom as we know it,

Hararigoes on to explain how the twenty-first-century technologies (potentially capableof augmenting the physical, emotional and intellectual abilities to an unimaginablelevel) could give rise to a new kind of inequality that divides “humankind into a37）mass of useless humans and a small elite of upgraded superhumans.”

This may very well be the future, and it would seem plausible to argue, as
does Harari, that “liberal habits such as democratic elections will become
obsolete, because Google will be able to represent even my own political38）

opinions better than I can.”One may also begin to question why human34） Slavoj Žižek, Hegel in a Wired Brain, Bloomsbury Academic, 2020, p. 49.
35） Yuval Noah Harari, Homo Deus: A Brief History of Tomorrow, Harper, 2017, p. 396.
36） Hegel in a Wired Brain, pp. 176―177: “The distance between our inner life, the line of
our thoughts, and external reality is the basis of the perception of ourselves as free: we arefree in our thoughts precisely insofar as they are at a distance from reality, so that we canplay with them, make thought-experiments, engage in dreaming, with no direct consequences in reality, no one can control us there. Once our inner life is directly linked to reality so that our thoughts have direct consequences in reality (or can be directly regulated bya machine that is part of reality) and are in this sense no longer ʻours,ʼ we effectively entera post-human state.”37） Homo Deus, p. 408.
(19)82

Anticipated Technological Breakthroughs and Their Possible Impact on Democratic Legitimacy

rights such as freedom of opinion, thought, and conscience have to remain
inviolable if, say, it becomes possible to detect harmful intention in advance of
willful action. (Of course, there is also the question of what constitutes harm and who
decides.)

The future is not set in stone, however, and the technological breakthroughs
in question have yet to occur. Thus, for those who find the above scenarios
unpalatable and wish to preserve some aspects of democratic practice or values
into the future, it is still possible to think and act in the hope of realizing viable
alternatives. Not to raise expectations too high though, I will declare at theoutset that this article does not outline how this can be done. What I hope to do
instead is to think about the future of democracy in terms of legitimacy so as toadumbrate what challenges lie ahead if we are to contemplate saving democracyin the face of the aforementioned technological transformation.
It is widely acknowledged that legitimacy constitutes one of the key factors
contributing to the stability and longevity of collective human existence. In
addition, for a new form of enduring entity to emerge, the old order has to give
way to the new through the process of delegitimization and re-legitimization.
Thus, even if democracy is to become obsolete with the advent of newtechnologies, it would still have to go through a transitional phase during which
the existing democratic system becomes delegitimized. Furthermore, the processof delegitimization would have to involve peopleʼs opinion and collective
decision-making, given the nature of the existing political order: only thenwould it become possible to legitimize whatever is to follow. In other words, thetransition from democracy to another form of governance or rule would have to
involve some form of popular assent.
To elaborate on this point, let us first consider the nature of legitimacy inrelation to opinion.

4―2 Legitimacy and Opinion
Legitimacy is a polysemous term that would require a whole new article (or even38） Homo Deus, p. 394.
81(20)

法学研究 96 巻 6 号（2023：6）

book) to cover all the meanings attributed to it. Thus, for the purposes of thisarticle, I will simply take legitimacy to mean a relatively durable belief
concerning rightful obedience to certain forms of authority or rule. This implies
that authority or rule must be voluntarily accepted and sustained from below,that is, by the opinion of the ruled or the people. (In democracy, people
theoretically rule and are ruled at the same time—the notion of self-rule.)

I emphasize the role of opinion in legitimacy because opinion is, as David
Hume explained almost three centuries ago, the source of authority for any
form of government (whether democratic or despotic).
NOTHING appears more surprising to those, who consider human affairs
with a philosophical eye, than the easiness with which the many aregoverned by the few; and the implicit submission, with which men resign
their own sentiments and passions to those of their rulers. When we enquire
by what means this wonder is effected, we shall find, that, as FORCE isalways on the side of the governed, the governors have nothing to support
them but opinion. It is therefore, on opinion only that government isfounded; and this maxim extends to the most despotic and most military
39）

governments, as well as to the most free and most popular.

Hume lived in an aristocratic era where the elite few ruled the many.
However, as he stated: “FORCE is always on the side of the governed.” This istrue even today, since it is the majority of the people who labor to produce
things that are necessary for collective human existence. It is the people who till39） David Hume, “Of the First Principles of Government (1741),” in Essays, Moral, Political, and Literary, ed. Eugene F. Miller, Liberty Fund, 1985, p. 32. Hume is often credited
for articulating this maxim, but William Temple claimed something quite similar seventy
years or so before Hume. William Temple, “An Essay upon the Original and Nature ofGovernment,” in Miscellanea, Edw. Gellibrand, 1680, pp. 53―54: “Nor can it be in the other case, that when vast numbers of men submit their lives and fortunes absolutely to theWill of one, it should be want of heart, but must be force of custom, or opinion, the true
ground and foundation of all Government, and that which subjects Power to Authority.
For Power arising from Strength, is always in those that are governed, who are many: But
Authority arising from opinion, is in those that Govern, who are few.”(21)80Anticipated Technological Breakthroughs and Their Possible Impact on Democratic Legitimacy

the soil, manufacture goods, transport them, engage in commerce, and fight fornational defense. Furthermore, even in the age of democracy, the ruling elite has
not disappeared (though there is perhaps more social mobility, comparatively
speaking). And yet, without peopleʼs economic and military cooperation, theelite or the regime would be powerless.
This is why opinion becomes fundamentally important. So long as the
majority of the people share an opinion that it is right or natural or normal toobey the regime under which they live, the regime will continue to exist with agrip on authority (barring force majeure). People do not necessarily have to beardent supporters of the regime. Even reluctant or fearful obedience could
contribute to maintaining legitimacy.
All enduring societies in human history have known the importance of
opinion (especially the leaders) , either consciously or instinctively. And all
enduring societies in human history have had a language or theory of legitimacy.
Here, I distinguish between the language of legitimacy and the theory oflegitimacy, though they often overlap. By the language of legitimacy I include,
among others, non-linguistic means of persuasion, representation, andcommunication such as rituals, customs, symbols, art, dance, and music.
Through these means, people come to foster a sense of shared identity or belief,
and accept (often unconsciously and without express consent) the existing form of
rule. In contrast, the theory of legitimacy is characterized by its express attempt
to explain through language what good reason there is to obey and respect
certain authority. In my view, neither one nor the other is superior in moral or
any other terms. Historically however, and prior to modernity, only in certain
regions of the world such as the West and China did the theory of legitimacy
come to play a significant role.
Today, however, in almost all parts of the world, a particular strain of thetheory of legitimacy predominates. This is democracy, the idea that authority orrule is legitimate only insofar as it derives from and pursues the interests of thepeople. How this came to be is a long and bloody story involving the rise ofmodern sovereign states. I have co-authored a book recounting the historical
process by which one theory of legitimacy after another rose and fell inaccordance with the changing sea of opinion, finally to end up with the79(22)

法学研究 96 巻 6 号（2023：6）

predominance of the theory of legitimacy underpinning the modern state and40）

democracy. Here, I shall simply reiterate the point that any theory oflegitimacy is only as effective as its underlying support (i.e., opinion) from thepeople. And, while the theory of legitimacy often serves as a means to musteringand shaping opinion, opinion is not always compliant. Moreover, opinion canshift towards endorsing a different theory of legitimacy if enough people find it
more appealing. During the French Revolution, for instance, opinion shiftedfrom the theory of the divine right of kings to one of popular sovereignty,
thereby delegitimizing the Ancient Régime and legitimizing what followed(though the latter faced a significant period of instability).

In view of the nature of democratic legitimacy, which institutionalizes
opinion through elections and other instruments for ensuring popular
expression, its delegitimization would most likely occur (if it were to occur)through the use of these instruments. There are numerous historical examples
where democracy was overthrown through democratic means.
Thus, any hope of saving democracy in the face of technologicalbreakthroughs must comprise the continued endorsement of democracy bypeopleʼs opinion. Nonetheless, today, for all kinds of reasons, people fromaround the world are becoming increasingly disenchanted with democracy. Thisin itself is a recipe for the erosion of democratic legitimacy. However, thistendency could accelerate to the point of delegitimizing democracy if people arepresented with a viable and attractive alternative based on technological rule.
And, as I hope to show in the next section, once humanity passes beyond acertain threshold, there will arise an unprecedented situation in which peopleʼsopinion will cease to have relevance in politics. In fact, politics itself might cease
to exist.

40） Ken Tsutsumibayashi and Megumi Tsutsumibayashi, “Opinion” no seijishisoshi: Kokka
wo toinaosu, Iwanami Publishers, 2021 (in Japanese, but an English translation with the title Past and Future of “the State that Never Dies”: A History of State Theory through theLens of Opinion under preparation).
(23)78

Anticipated Technological Breakthroughs and Their Possible Impact on Democratic Legitimacy

4―3 The Challenges Ahead for Democratic Legitimacy and Opinion
What would or could tempt people to forsake democracy in favor oftechnological rule? What is required in order to save democracy in the face oftechnological breakthroughs?
As for the second question, we already know that continued endorsementof democracy by peopleʼs opinion is a prerequisite. But how is this possible?
What are the incentives, or rather disincentives, for doing so? To answer thesequestions, let us begin by acknowledging some of the reasons offered in defenseof democracy.
It would seem naïve to think that democracy has come to prevail because it
is true or just in some metaphysical or providential sense. There is little reason
to believe that the history of humankind is one of teleological development orprovidential design. Then, why is democracy (as a language and theory oflegitimacy) so prevalent in todayʼs world? On the one hand, one could argue that

it is simply a product of historical contingency, that nothing was inevitable.
Conversely, every historical event has a cause, and it would be hard to deny theexistence of path-dependent constraints. So, to understand why and how
democracy has come to attain its present status, a thorough historical analysis
41）

would be required.

Here however, I shall focus not on how democracy came to prominence but
on how it is being defended. My following account is hardly exhaustive but it ispossible, it seems to me, to group various arguments into three types.
(1) Democracy as capable of delivering desirable outcomes(2) Democracy as a form of just procedure(3) Democracy as an intrinsic value
For each type, there are variations. Proponents of (1) may argue that
democracy ensures good or correct decisions in achieving the common good. Or41） E.g., John Dunn, Setting the People Free: The Story of Democracy, 2nd ed., Princeton
University Press, 2018.
77(24)

法学研究 96 巻 6 号（2023：6）

more modestly, that democracy is better than other systems in delivering
desirable outcomes. It may also be claimed that democracy is better suited togarnering talents, preventing corruption, and maintaining peace, thereby
42）

making the system more resilient to crisis.

As for (2) and (3), they provide not so much rational justification of
democracyʼs superiority but rather how it would play out in various significant
ways if it was to be admitted.
Now, all these arguments are in one way or another contested, and there isconstant disagreement among various defenders of democracy (not to mention
criticism from those who deny democracy per se). This is also true in the related

discourses where there are disagreements over the guiding principle for collective
decision-making: whether to opt for utilitarianism or deontology (i.e., duty
ethics).

Notwithstanding these differences, however, there is at least for now abroad consensus (i.e., opinion) among these various proponents that democracy(of the liberal kind) is best suited to the human conditions of the presently

existing world. Afterall, without this democratic space that ensures academic
freedom, it would not even be possible to have these disagreements. Moreover,even at the practical level of politics (at least in liberal democracies), there is still awidely shared opinion that democracy is the best (or the least bad) system forachieving the common good, or at least one that allows people of differing
views, beliefs, status, and backgrounds to coexist peacefully with some degree of
freedom and dignity.
This opinion, it is worth repeating, is what sustains the present form of
democracy. Furthermore, in the final analysis, what matters is not whether it ispossible to come up with a rational justification of democracy, but whether it ispossible to maintain wide and continued support for it.
However, once technological breakthroughs occur, this may change.
42） David Runciman, for example, states the following in his book The Confidence Trap
(Princeton University Press, 2013): “it is this capacity to stumble through crises that gives
democracy the edge over its autocratic rivals. Democracies are better at surviving crises
than any alternative system because they can adapt. They keep groping for a solution,even as they keep making mistakes” (pp. xvi―xvii).
(25)76

Anticipated Technological Breakthroughs and Their Possible Impact on Democratic Legitimacy

Opinion could shift towards supporting a new theory of legitimacy based ontechnological rule. In fact, the more likely scenario might be for opinion to
become deeply divided between supporters of democracy and those of the neworder. In any case, democracy would face a legitimacy crisis, and given that
opinion will ultimately decide its fate, it becomes important to focus on thistransitional phase.
What aspects of technological rule might people find alluring? This would
no doubt vary between individuals, but it is not hard to imagine that many willfind the promise of happiness, health, and longevity (if not immortality)
attractive.
As for the pursuit of happiness, one might see an affinity with utilitarian
thought, but it is fundamentally different in that it is not about “the greatest
happiness of the greatest number.” Rather, technology (if successful) would makeeach and every person happy, while eradicating all kinds of pain and suffering.
Thus, unlike utilitarianism, it no longer relates to policy-making, and what ismore, there is no possibility of a minority losing out.
Happiness or pleasure, of course, is not a uniform idea or emotion, and aswith J.S. Mill, one might wish to distinguish between high and low pleasures.
One may also believe that suffering is essential to making happiness meaningful.
Despite this, once it becomes technologically possible to experience unmitigatedpleasure without pain or suffering, it is questionable whether the majority ofpeople would still opt for a life in which happiness (however singular or intense)
could only be attained sporadically or after a long journey of torment.
The same may also apply to health and longevity. While immortality may
not seem appealing to many alive today, there may be appetite for technologythat would vastly extend the period of healthy life, say, by a couple of hundredyears. Moreover, it would not be hard to imagine that there might be those who
would welcome technologyʼs enhancing of intelligence as well as physicalcapabilities—transforming them into homo deus.
Whether this appears as a utopia or dystopia will differ among individuals,
but what makes prediction or moral judgement difficult is that our own views
tend to change in accordance with changing times and circumstances. What may
seem far-fetched or morally repugnant today may become normal and just in75(26)

法学研究 96 巻 6 号（2023：6）

the future. This may be the case, especially for those who will be born into theworld after the technological breakthroughs. To them, everything will seemnormal, not knowing what it was like before the transformation. And yet, evenfor those who experience the transformation, it may transpire that the future self
thinks that the past self was primitive and immoral, just as we might today thinkthat slavery, gender discrimination, and homophobia are detestable sentiments
which we are glad to have left behind.
It is difficult to freeze time and to ensure that future generations will abideby the rules and norms created in the past. This is a familiar problem among
political theorists, and it becomes an issue when, for instance, one tries to defend
constitutionalism. What good reason is there for the present will of the people
to be constrained by past agreements? What justification is there for the living to
be ruled by the dead? Precommitment theory is sometimes invoked to solve this43）

dilemma, but the issue remains controversial.

What is more, this kind of temporal dilemma becomes all the more acute ina democracy where the people is sovereign. As Jean―Jacques Rousseau stated in
the Social Contract:
The sovereign may indeed say: “I want now what a certain man wants, or atleast what he says that he wants”; but he cannot say: “What that man wants
tomorrow, I shall also want,” since it is absurd that the will should take on
chains as regards the future, and since it is not incumbent on any will toconsent to anything contrary to the welfare of the being that wills. If, then,the people simply promises to obey, it dissolves itself by that act and loses
its character as a people; the moment there is a master, there is no longer a44）

sovereign, and forthwith the body politic is destroyed.

Democracy has the inherent tendency to privilege the present, but the43） E.g., Jon Elster, Ulysses Unbound: Studies in Rationality, Precommitment, and Constraints, Cambridge University Press, 2000; Stephen Holmes, “Precommitment and theParadox of Democracy,” in Constitutionalism and Democracy, eds. Jon Elster and Rune
Slagstad, Cambridge University Press, 1988.
(27)74

Anticipated Technological Breakthroughs and Their Possible Impact on Democratic Legitimacy

situation could be further complicated if there appear people who do not die, orwhose life expectancy is vastly extended. In this case, it becomes a question ofself-restraint, that is, voluntarily adhering to oneʼs own decisions. This would
certainly be a challenge in the absence of objective and immutable criteria such45）

as natural law or sacred canopy.

Finally, technological progress may bring about an era in which, for the
first time in human history, opinion ceases to be relevant in politics. As
acknowledged earlier, force resides with the people because people provide themeans and goods necessary for the functioning and survival of a society. So longas this remains the case, peopleʼs opinion will matter. But what if machines,
robots, and avatars replace humans in their hitherto activities? While this mightliberate people from labor, their opinion will most likely lose its potency. And if,
as Harari points out, this leads to a situation in which humankind is divided
between “a mass of useless humans and a small elite of upgraded46）

superhumans,”

why should the latter bother with politics or care about theplight of the former whose opinion no longer has any clout?

5

What Remains?

From what we have seen thus far, the future does not bode well for democracy.
As I hope to have shown however, much will depend on how we maintain
opinion in its support. And equally, opinion will matter in deciding the fate of44） Jean-Jacques Rousseau, The Social Contract and The First and Second Discourses, ed.
Susan Dunn, Yale University Press, 2002, p. 170. Rousseau makes a similar point at several occasions. For example, he states that: “a nation is always at liberty to change its laws,even the best; for if it likes to injure itself, who has a right to prevent it from doing so?”(Ibid., p. 191); “I presuppose here what I believe that I have proved, that there is in theState no fundamental law which cannot be revoked, not even the social compact; for if all
the citizens assembled to break this compact by a solemn agreement, no one can doubtthat it would be quite legitimately broken” (Ibid., p. 226). See also Ibid., 165.
45） Peter L. Berger, The Sacred Canopy: Elements of a Sociological Theory of Religion,
Anchor, 1990.
46） Homo Deus, p. 408. Harari also states that “technological developments will make humans economically and militarily useless” (pp. 357―358). See also Ibid., pp. 382, 403, 407.
73(28)

法学研究 96 巻 6 号（2023：6）

humanity. Whether to opt for a posthuman society in which humans evolve intoa homo deus-like existence, or to remain humans with recognizably humanqualities, is a matter of choice, at least in the phase leading up to or immediately
after the technological breakthroughs outlined above.
In any case, it would seem worthwhile to think about where we would likethe technology to take us (or not take us) while opinion still has force andinfluence. This calls for a wide and extensive discussions involving all kinds ofactors. And needless to say, this should include scientists and entrepreneurs
working on the technologies in question. The opinion of the scientificcommunity no doubt matters.
In this respect, it is consoling to learn that the three scientists mentioned inthis article are all committed to ELSI and care deeply about humanity. Ushibaʼsfollowing remark is indicative of this point.
Personally, I see BMI as a means to identifying the non-mechanical traits
characteristic of humans such as the richness of the mind and kindness ofheart. IoB is characterized in some sense by an extreme view of things. The
research heads towards deciphering the brain in a mechanistic way, with aview to replacing with machines whichever part that can be replaced, andto extending its function by connecting the brain with machines. But
despite this effort, I am inclined to think that something will always remain
undecipherable, something very non-mechanical and human. I would liketo hold on to the view that there is only so much you can do to understandthe brain in mechanistic terms, that in the end we realize how much we do
not understand about the brain or humans. I feel I am doing this research,wanting to find out the core elements of what makes humans human. I am
attracted to human qualities, those precious and endearing attributes, and I
find the IoB research interesting since it ironically involves a search for47）things that are human.

However, it is important to be reminded that BMI is, as Ushiba himself
47） Hougaku Seminar, 807(2022), p. 70.
(29)72

Anticipated Technological Breakthroughs and Their Possible Impact on Democratic Legitimacy

admits, a technology that has the potential to “reveal the subconscious mind andcontrol it”

48）. This could mean that whatever the qualities that make humans

human may not be as immutable or undecipherable as one assumes. In whichcase, even human nature may not remain unchanged or unchangeable, making it
a subject of choice (if not manipulation).
For the longest time in human history, human nature has been thought ofas something given. And indeed, many have tried to construe ideas and theories
about society and sociability (as well as their opposites) based on this seemingly
immutable premise. Of course, there are in fact numerous interpretations ofhuman nature, and what seems natural may turn out to be a product of culture
and history. Even so, mind-reading or mind-controlling technology could leadto consequences of a completely different order, transforming humans into
something no longer recognizably human.
And yet, if to remain human or not is a question of choice, then it seems
worthwhile to reflect on the history of humanity and think collectively about
49）

what we may wish to preserve. Today, despite all the differences in cultural,

linguistic, and temporal context, many of us are still able to appreciate art,
literature, music, and artefacts from different regions of the world (howeveranachronistic it may seem from the viewpoint of those who created them). Of course,

it may be argued that a lot of what we cherish today are products of mortalbeings whose experience of suffering as well as joy lies at their heart. And for
those who attain immortality, the idea or sentiment of dying for or losing loved
ones, for example, may become simply incomprehensible.
It would be pointless to predict what people might think or feel in a distantfuture replete with vastly advanced technologies. But for now, we are the ones
occupying the world and what we think and decide to do will influence theshape of what is to come.

48） Hougaku Seminar, 807(2022), p. 60.
49） The emerging field of comparative political theory or thought can, I believe, contributeto this endeavor. E.g., Melissa S. Williams (ed.), Deparochializing Political Theory, Cambridge University Press, 2020; Leigh K. Jenco et al. (eds.), The Oxford Handbook of Comparative Political Theory, Oxford University Press, 2019
71(30)