This Is Your Brain on Human Rights: Moral Enhancement and Human Rights

It seems fair to say that human rights law takes the human as given. Human beings are particular kinds of entities with particular kinds of psychologies and propensities, and it is the job of human rights law and human rights enforcement to govern that kind of entity, be it through sanctions, education, incentives, or other mechanisms. More specifically, human rights law takes human brains as given. If humans were different kinds of beings, both the mechanisms of getting compliance and possibly the very rules themselves would be different. The purpose of this essay is to very tentatively start to tie together thinking in neuroscience, bioethics, and human rights law to ask whether human rights law should take the nature of human beings, and more specifically, human brains, as given. I sketch the alternative possibility and examine it from a normative and (to a lesser extent) scientific perspective: instead of merely crafting laws and setting up structures that get human beings such as they are to respect human rights, that the human rights approach should also consider embracing attempts to remake human beings (and more specifically human brains) into the kinds of things that are more respectful of human rights law. This is currently science fiction, but there is some scientific evidence that moral enhancement may one day be possible. I call the alternative “moral enhancement to respect human rights law.” To put the aim of the essay in its mildest form it is to answer the following question: if it becomes possible to use enhancement to increase respect for human rights and fidelity to human rights law (whatever you think is constitutive of those categories), and in particular in a way that reduces serious human rights violations, is it worth “looking into?” Or, by contrast, are the immediate objections to such an endeavor so powerful or hard to refute that going in this direction should be forbidden. DOI 10.1515/lehr-2015-0001 *Corresponding author: I. Glenn Cohen, Harvard Law School, Cambridge, MA, USA; Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, Cambridge, MA, USA, E-mail: igcohen@law.harvard.edu Law & Ethics of Human Rights 2015; 9(1): 1–41 Authenticated | mansp@netvision.net.il Download Date | 5/13/15 1:58 PM Electronic copy available at: http://ssrn.com/ abstract=2610655 Introduction One common narrative about human rights in the twentieth and twenty-first centuries emphasizes the ways in which technological advancement has outpaced moral development. Zarpentine notes a 1923 lecture by J.B.S. Haldane to the Heretics Society entitled “Daedalus; or Science and the Future,” in this vein wherein he treats the First World War and developments in science as profoundly worrisome, writing: Whether in the end man will survive his ascensions of power we cannot tell... To those who believe in the divinity of that part of man which aspires after knowledge for its own sake ... the prospect will appear most hopeful. But it is only hopeful if mankind can adjust its morality to its powers. If we can succeed in this, then science holds in her hands one at least of the keys to the thorny and arduous path of moral progress. Since then things have only gotten worse. The image one gets from much of this discourse is of humankind as a moral toddler that does not grow older but in each successive year gets access to more heavy armaments or nuclear weapons. It seems fair to say that human rights law takes the human as given. Human beings are particular kinds of entities with particular kinds of psychologies and propensities, and it is the job of human rights law and human rights enforcement to govern that kind of entity, be it through sanctions, education, incentives, or other mechanisms. More specifically, human rights law takes human brains as given. If humans were different kinds of beings, both the mechanisms of getting compliance and possibly the very rules themselves would be different. For example, if, to use a far-fetched example, at some later time earth was populated by Martians who were all superego and no id, perfectly responsive to reason and rational argument but impervious to passion or any other emotional kind of reasoning, the kind of human rights (“Martian rights”?) structures, mechanisms, and content that would make sense would be different. The purpose of this essay is to very tentatively start to tie together thinking in neuroscience, bioethics, and human rights law to ask whether human rights law should take the nature of human beings, and more specifically, human brains, as given. 1 Chris Zarpentine, The Thorny and Arduous Path of Moral Progress: Moral Psychology and Moral Enhancement, 6 NEUROETHICS 141, 141 (2013). 2 For a good example of the worry that our increased scientific ability has outstripped our aptitude for moral reflection, see Ingmar Perrson & Julian Savulescu, Getting Moral Enhancement Right: The Desirability of Moral Bioenhancement, 27 BIOETHICS 124, 127–28 (2013). 2 Law & Ethics of Human Rights Authenticated | mansp@netvision.net.il Download Date | 5/13/15 1:58 PM I sketch the alternative possibility and examine it from a normative and (to a much lesser extent) scientific perspective: instead of merely crafting laws and setting up structures that get human beings such as they are to respect human rights, that the human rights approach should also consider embracing attempts to remake human beings (and more specifically human brains) into the kinds of things that are more respectful of human rights law. I call the alternative “moral enhancement to respect human rights law,” though as we see there can be debates about whether or not it is distinctly moral and whether cognitive enhancement counts as moral enhancement. For the moment, let us imagine that neurochemical interventions on already existing human beings, or genetic selection (or modification) of those who could come into existence was available and could succeed in making individuals “more moral” (more on what that might mean below) in a way that is relevant to human rights law. I ask whether such enhancement might be worth pursuing as part of the program of improving respect for human rights law. My aim in this essay is modest, because of its length, the speculative nature of the science, and because I am self-admittedly not a human rights lawyer or human rights law expert. My aim is to begin a conversation and ask more questions than I can answer, let alone answer definitively. In some ways the goal is to parse out what questions are important but covered by the existing literature, what questions are less important, and what questions are truly novel about the intersection of human rights law and moral enhancement. For these reasons this essay is very much pitched at the 10,000 feet level. I do not seek to parse questions that I am told remain controversial in the human rights law field such as what exactly constitutes human rights, what list of human rights merit inclusion or exclusion on the list for which enhancement might be attempted, what methods of enforcement might look like, etc. Instead I try to navigate from some admittedly easier paradigm cases (like genocide), focus on the prevention of grave human rights violations, and self-consciously leave the boundary cases to the penumbra. My thinking is that if it turns out moral enhancement to respect human rights law fails as potential avenue to pursue even as to the easier cases, then it will certainly fail as to the more fraught and contested human rights norms. To put the aim of the essay in its mildest form it is to answer the following question: if it becomes possible to use enhancement to increase respect for human rights and fidelity to human rights law (whatever you think is constitutive of those categories), and in particular in a way that reduces serious human rights violations, is it worth “looking into?” Or, by contrast, are the immediate objections to such an endeavor so powerful or hard to refute that going in this direction should be forbidden. Moral Enhancement and Human Rights 3 Authenticated | mansp@netvision.net.il Download Date | 5/13/15 1:58 PM A secondary goal of the essay is to examine what might be learned by intersecting human rights law into the existing literature on moral enhancement. In particular, to see if some of the objections to moral enhancement more generally are less powerful if we focused only on moral enhancement that promotes respect for human rights law, or if the converse is true. The plan of the essay is to first examine a prima facie case for a program aimed at enhancement. I then examine a series of first-order objections to such a program, including difficulties in agreeing on what moral behavior is, the value of the capacity to do wrong, the question of whether such enhancement would have to be mandatory, and the question of a human right to be unenhanced. I should emphasize that I am not seeking to deal with the standard arguments against enhancement generally in this article, in part because that is work I have done elsewhere. Instead, I am focused on objections specific to moral enhancement to respect human rights law, though there may admittedly be some overlap. Before I do so, though, I briefly discuss the question of can, not ought, and the feasibility of moral enhancement. The Emerging Science of Moral Enhancement