Book review: Law at the Frontiers of Biomedicine

Let me start this review of Shaun Pattinson’s latest book ¹ with a declaration of interest – not a conflict of interest, but a very considerable community of interest. By this, I mean that I echo Pattinson’s prefatory remarks to the effect that he supports ‘the Archimedean claim made by Alan Gewirth that there is a supreme principle of morality’, namely, the Principle of Generic Consistency (the PGC). ² I share Pattinson’s legal idealist conceptual understanding of law. ³ Indeed, I take it that, if we treat law, ethics, and morals, with their various rules, principles, and standards as so many versions of ‘governance’, then any human community should treat the PGC as its guiding star for the performance of its governance functions (notably, the channelling of conduct and the settlement of disputes). Given this declaration, it will be no surprise that I would advise all biomedical lawyers to put this book at the top of their reading list. But I would say that wouldn’t I?

Pattinson’s book is in three parts. In the first part, readers will find some sharply drawn and useful distinctions – particularly between ‘cultural morality’, ‘refined cultural morality’, and ‘acultural morality’ – and they will find the argument for the PGC rehearsed by following the pathway that has been laid out so carefully by Deryck Beyleveld. ⁴ One of the virtues of this pathway is that it shows very clearly that, while first-person prudential reason can take us so far towards acultural moral reason, it cannot take us all the way to a universalisable and categorically binding supreme principle of action. To get to this Archimedean principle, we need to focus on the agent’s own self-understanding of their agency (and its generic needs and pre-requisite conditions). In other words, we see that it is agential self-understanding that does the heavy lifting and that propels the argument to the PGC through its later stages.

Readers will also find some highly significant reflections on ‘contextual legal idealism’ ⁵ which, as Pattinson puts it in his concluding remarks, ‘amounts to the claim that legislators and judges should apply a universal moral principle (the PGC) to the context in which they are operating. . .’ ⁶ Given that the context in which legislators and judges typically operate is not one in which the PGC is recognised as the supreme principle for governance, the staging for Pattinson’s project involves a delicate tension: on the one hand, we believe that both those who govern and those who are governed are rationally committed to recognising the PGC as the key to governance questions, but, on the other hand, we know that they either contest that rational commitment or simply proceed without any recognition of the PGC as the supreme principle. Accordingly, the challenge for the book is not so much to write scripts for the application of the PGC to leading edge biotechnologies but to write scripts for legislators and judges that observe the custom and practice, including the conventions and the constraints, of their particular governance context while being silently guided as far as practicable by the PGC.

In the second, and most substantial, part of the book, the contextual legal idealist approach is illustrated in four detailed case studies. Each of these case studies focuses on a particular development at the frontiers of biomedicine, on something that can now be done (or, at any rate, can be done in the assumed near future), and then it considers whether (relative to the PGC) it ought to be done and how (relative to contextual legal idealism) it should be governed. Each of the four technological developments – which concern heritable genome editing, ectogestation, cybernetic biohacking, and cryonic reanimation – lies at the edges of current legal provisions. The pattern of discussion in each case is broadly similar: the state of the technological art is sketched, the state of the law (UK law being the applicable law) is assessed, a future scenario applying the technology is specified, the PGC is applied to the scenario, and then (in the cases of heritable genome editing and cybernetic hacking) we have the elaboration of a parliamentary bill that articulates a contextual legal idealist response or (in the cases of ectogestation and cryonic reanimation) we have a hypothetical judicial response that exemplifies a contextual legal idealist approach. So, in each case study, we have a direct engagement with the PGC and then the guidance given by the PGC is applied in the mediated and muted way that contextual legal idealism requires.

For the purposes of these illustrative cases, in which Pattinson displays an impressive familiarity with the latest state of various biomedical technologies and their next-generation applications, it is the UK legal system and its laws that provide the context. Although the UK context is not the best that legal idealists might hope for – as Pattinson emphasises, the UK ‘has not adopted the first-best primary constitutional principle (the PGC. . .), the second-best (a principle of human rights grounded in dignity), or even the third-best (a principle recognising the primacy of a more limited set of relevant rights)’ ⁷ – the best practitioners of contextual legal idealism are able to do pretty well in closing the gap between what the PGC prescribes and what, within the accepted tolerances of governance practice, is possible. Of course, in other places, the tolerances and affordances in judicial and legislative arenas might be much less helpful and the practitioners of contextual legal idealism might be much less capable. In these places, the gap between the PGC in the books and contextual legal idealism in action might be much greater. On the other hand, if the context for adjudication is one in which decisions are simply announced without the giving of reasons, PGC-minded judges might not be much constrained at all.

Collectively, the case studies help us to understand the kind of guidance that we can derive from the PGC in its direct applications, what (in the United Kingdom) contextual legal idealism might look like when it is practised by judges, and what (in the United Kingdom) contextual legal idealism might look like in legislative (and pre-legislative) settings.

With regard to the first of these matters, if we understand that the purpose of the PGC is to establish and sustain the conditions for viable agency rather than to dictate how agents and their communities should articulate their agency, we should not expect to find a blueprint for the expression of agency. Essentially, the PGC permits agents to operationalise their agency in their own way, pursuing their own freely chosen plans, purposes, and priorities, provided always that this is compatible with respect for the generic conditions (and, concomitantly, the generic rights). In other words, although the PGC sets the pattern of, and priorities for, the governance of communities of agents, PGC-compliant governance is designed to permit agents and communities to pursue their own projects. It follows that, as a general rule, we would expect agents to be permitted to take up the latest biomedical options unless this will compromise the generic conditions or breach generic rights.

However, we should also bear in mind that agents are permitted to modify their own position under the general rule because the generic rights are will-rights. Characteristically, agents do so by giving their free and informed consent to an action or omission that would otherwise violate their generic rights, or by signing up to special codes of governance that are more restrictive (e.g. a code of silence that is adopted by some monks) or less restrictive (e.g. the codes of contact sports) relative to the general permission. The significance of agent waiver or consent is a point made recurrently across the case studies – for example, where a pregnant agent waives her own generic rights to permit partial ectogestation that might place additional burdens on her body, ⁸ and similarly, when dealing with the case of cybernetic biohacking. ⁹ Pattinson reminds readers throughout that the PGC generally permits consensual transactions or interactions between agents provided that there is no defect in the consent process or ‘the violation of the more important generic rights of others’. ¹⁰ We also have a variation on this theme in the case study on cryonic reanimation where the general issue is about an agent’s right to refuse a medical intervention (potentially to their detriment), but the particular focus is whether a teenager (aged 15 years at the time of cryo-preservation and now reanimated some years later) should be treated as an adult agent (with the standard competence to consent or refuse) or as a 15-year-old whose competence cannot be presumed but has to be judged on the facts.

Over and above this general picture of the PGC, Pattinson identifies four meta-principles for the direct application of the PGC. ¹¹ These meta-principles speak to the ranking of the generic needs of agents, recognition of both negative and positive generic rights, and the moral status and proportionate protection of partial agents. So, for example, guidance is to be derived from the principle of proportionality when – as in the cases of heritable genome editing (where it is assumed that gene-editing techniques have gone beyond a threshold for safety and reliability) ¹² and ectogestation – we are dealing with embryonic or foetal humans who are ‘partial agent-behavers’ (i.e. beings whose lives count for less than a newborn and, a fortiori, less than a child or an adult). ¹³

In a couple of the case studies, what we have at the frontiers of biomedicine are potential techniques for the enhancement of agency – notably, for life-saving or sight-enhancing gene editing, and for life-extending cryogenics. If the generic conditions of agency could be enhanced for the benefit of all agents (as might be the case with, say, technologies that mitigate the impact of global warming or that confer immunity against dangerous infectious diseases), then it would seem plausible to permit their implementation. However, where access to the enhancing technologies will be limited to only those (few) agents who can afford the procedures, we might wonder how this impacts the generic rights of other agents. Does this disable their possibility of agency? Moreover, if we cannot ensure that the enhanced conditions are available to all agents, how might this square with the idea that agents are equally stakeholders in these conditions? According to Pattinson, where the proposal is to offer the opportunity of super longevity, the principle seems clear: if this option ‘could not be provided to everyone, it ought not to be provided to anyone’. ¹⁴ But, where the option is for gene-editing for, say, superhuman vision, the position seems less clear, the question being whether access should be prohibited ‘to avoid exacerbating existing social inequities’ or permitted on non-discriminatory terms for ‘prospective parents who have the required resources’. ¹⁵ Here, Pattinson tells us that it seems, ‘politicians attempting to apply the PGC competently and in good faith in a particular context could reasonably reach different conclusions’. ¹⁶

Of course, agency-enhancing technologies do not come out of nowhere; governance needs to take a position on their research and development, on IP questions and the like, on their ex ante safety checking, and so on; it is not simply a matter of making a decision about their allocation once they have been given regulatory approval for use. So, in this bigger picture, should we argue for a rule which permits (even incentivises) research and development of potentially agency-enhancing technologies, knowing that in practice they will not be available to all? Or, should we argue that such incentives would be proper only if, say, we are confident that those agents who are not able to access the technologies will be no worse off thereby? Would this be PGC compatible? If not, is this a special rule that agents in a particular community might be permitted to sign up to?

So much for the direct application of the PGC, but this is only part of the story. Two of the illustrative case studies (on ectogestation and cryonic reanimation) also indicate how contextual legal idealism might look if it were to be practised by UK judges. These judicial scripts are an engaging read and there is close attention to the legal detail. However, taking a step back, the general approach follows Ronald Dworkin’s well-known theory of adjudication. ¹⁷ According to this theory, judges decide on the basis of principle rather than policy, they attend to considerations of fit (with the jurisprudence), and they seek to justify their decisions in the light of the best reading of the community’s political morality. To the extent that we might think that Dworkin’s theory is under-determined, leaving too much discretion to judges, Pattinson’s contextual legal idealism has the benefit of the PGC as its Archimedean vantage point for determining which reading of the law is the ‘best’. ¹⁸

We also have two case studies (on heritable genome editing and cybernetic biohacking) that illustrate a contextual legal idealist approach in legislative (and pre-legislative) settings. Typically, we think that, in these settings, the constraints that apply to judicial reasoning, particularly the constraints against ‘policy’, no longer apply. Of course, contextual legal idealists will still want legislators to steer towards the PGC but, otherwise, the process would not be restricted. However, Pattinson is more demanding: he expects that a ‘legislature seeking a competent and good faith application of the PGC would seek to ensure that the law as a whole forms an integral web of legal principle under the PGC’, ¹⁹ and indeed, one of the distinctive features of the legislative scripts drafted for these case studies is that the bills include an explicit statement of the principles on which they draw. Moreover, the legislative process, including its democratic and participatory features, needs to be connected to the PGC and, importantly, it needs to be emphasised that a commitment to the PGC ‘constrains the goals and means of participatory democracy’. ²⁰ With regard to the latter, we know that the actuality is that there is a tendency for ‘passion and rhetoric to shape public discourse, for complex social phenomena to be presented as amenable to single-issue solutions and for powerful groups to influence public discourse in a way that is designed to prioritise their values or interests’. ²¹ Clearly, there are significant challenges to be met here.

Finally, we have the third and concluding part to the book. Here, in a single chapter, readers will find a useful recapitulation of the main themes of the book. However, I take it that the point of this chapter is to make readers aware that, although the book is basically done, there is much more work to be undertaken. In particular, we have to dramatically revise our understanding of what it is to think like a lawyer. Most obviously, we have to orientate our thinking to the PGC. In my own work, I have termed this overarching way of thinking as ‘new coherentism’ and, as I see it, we then have to work this through our old coherentist, principles-based, doctrinal thinking (Law 1.0), our policy-focused rule-based regulatory thinking (Law 2.0), and our technology-based regulatory thinking (Law 3.0). ²² Given the inward-looking style of doctrinal coherentism and the focus on effectiveness in regulatory thinking, we should not under-estimate the challenge involved in turning this round. We also must think globally. The book takes the UK legal system as its context and UK law as the applicable law for the illustrative case studies, but contextual legal idealism is a project for global governance. I suggest that we also must think about the speed at which new technologies are being developed and applied which, in turn, generates a marked social acceleration. ²³ Commonly, it is said that ‘ethics’ has a problem in keeping up with these developments, ²⁴ but it is a challenge for any form of governance and it might well be that ethics is more agile and able to get ahead of technological developments and their disruptive impacts than the somewhat laboured responses of law’s governance.

With the concluding chapter already sparking thoughts about the important project that Pattinson has undertaken in this book, let me wrap up the review with some further short reflections.

First, I take the point that, in many contexts, it would not be smart for judges to reason ‘from explicit recognition of the PGC’. ²⁵ Nevertheless, I do not think that we should be shy in making explicit the intuitively compelling shape of the PGC and its practical implications. All round the world, it is understood that humans are capable of destroying the conditions on which their existence and agency are predicated, and for billions of people, especially the younger generations of humans, it is self-evident that we should disengage from these self-destructive activities. We can continue to do things that lead to the existential threats presented by global warming, by stockpiling nuclear weapons, by pandemics, and so on. We can continue to do things that compromise our agency by engaging in intensive surveillance, by contributing to a toxic information environment, and so on. We can embark on projects, such as the development of general-purpose artificial intelligence (AI), that might threaten both our existence and our agency. For many, it is simply self-evident that we should not do these things. In other words, there is a convergence between, on the one hand, what billions of humans ‘get’ straightaway without argument and, on the other, the practical implications of the PGC. Far from being counterintuitive, the import and significance of the PGC is glaringly obvious.

Second, those who are responsible for governance should always ask whether their governance licenses acts or activities that might compromise the sustainability and viability of human agency. Whether the question is put in these terms, or in terms of whether governance is PGC-compatible, I do not mind: the question is essentially the same. What does matter is not so much how the question is put, but that it is put. ²⁶ Currently, our governance of new technologies does not engage this level of concern. Rather, regulators strive to find an acceptable accommodation of the positive and negative attitudes that they find in their communities – typically, these are attitudes relating to supposedly beneficial innovation and concerns about the disruptive effects of and risks that might be presented by these technologies and their applications. Regulators check that their proposed accommodation is compatible with whatever fundamental values (such as human rights) are recognised in the community. However, regulators need to go beyond the boundaries of their particular community to check that their proposed accommodation (and their fundamental values) presents no threat to the generic conditions for the sustainability and viability of human agents. Sometimes, there are conduits to these infrastructural conditions in the fundamental values that are recognised in the community. For example, concepts such as privacy and dignity can act as conduits and similarly the precautionary jurisprudence developed in environmental law can address these infrastructural concerns. However, within each community, there is a tendency to be hemmed in by the local jurisprudence, and if governance is to be PGC-compatible, we need to get beyond these local limits.

Third, we need to think about governance of the pre-legislative process, the legislative process itself, and the post-legislative governance of discontent and disaffection. The case studies in Pattinson’s book focus on the legislative process itself but, as he recognises, the actuality of public engagement is challenging and the details of how it is to be connected to the PGC are for another book. Although the United Kingdom took its time to consider the governance of assisted conception, its public engagement in relation to emerging technologies has not generally been particularly successful – for example, recall the public engagement in relation to genetically modified organisms, care.data, and fracking. No doubt, there will always be room for improvement in the way that participatory democracy operates, but – quite apart from the fact that taking our time to make our governance decisions might be a luxury of the past – there are major causes for concern. In particular, while public engagement might identify a broad sweep of interests and views, it will be unlikely to drill down as deep as the PGC and the generic conditions, and even if it does, as we have already noted, it will tend to be the powerful who will continue to drive the political and policy agenda.

Once legislative decisions have been made, and where these decisions have been heavily contested, there will be various kinds of discontent with law’s governance. Some will be discontent that their preferences have not been acted on; others will think that the community is failing to respect its fundamental values. For the latter, there might be the possibility of judicial review but, if that fails, then for all the disappointed, Jonathan Sumption seems to have the right idea when he says that ‘what holds us together as a society is precisely the means by which we do things. It is a common respect for a way of making collective decisions, even if we disagree with the decisions themselves’. ²⁷ So, it is right that we put the PGC spotlight on ‘the means by which we do things’ because they bear a considerable burden in forestalling unrest that could disrupt the peaceful co-existence that is a condition of viable agency. For the same reason, governance also needs to be attentive to the discontent of those who are convinced that the moral direction of the community is fundamentally mistaken. In practice, these agents may not be able to live in closed communities with like-minded moralists and this puts pressure on governance to make allowances for conscientious objection, and the like. ²⁸

Fourth, although we assume a human context for the argument to the PGC, it is now clear that the key driver in the argument is agential self-understanding. In principle, the PGC is binding on agents whether they are human or non-human. This provokes the question of whether AI-enabled ‘agents’ that can beat humans at Go, that (like Chat GPT) can generate texts that would pass university law exams, and that can do triage and image interpretation better than medical professionals should be recognised as at least partial agents? And, if and when general purpose AI is available, should we treat it as an agent for the purposes of the PGC? If the best argument to the PGC is agent-centric rather than human agent-centric, then how far can we rely on PGC-guided governance to protect our distinctively human-centric interests? This certainly would take another book to work through.

Finally, we should note the difference between the governance of technology and governance by technology. This review and Shaun Pattinson’s book are focused on how we should apply the PGC to the governance of various biomedical technologies. The question is what PGC-guided governance provides for in relation to these technologies. The assumption is that the governance in question will take the form of rules, principles, and standards in the way that the legislative and judicial scripts in the book are drafted. But, suppose that governance does not take this form but rather relies on technological management, or on AI applying the PGC, or even some of the biomedical technologies that are discussed in the book. That would be a different paradigm, one inviting consideration of governance by technology, and the question is how we connect the PGC to such an enterprise. Unless the best reading of the PGC is that governance by technology is off limits, or a community (in an Amish-like way) signs up to a code that rejects technological governance, what guidance does the PGC give us as we grapple with automated forms of governance that reduce our reliance on rules and humans? With this final thought, we arrive at the frontiers of both good governance and technology, doing so with few answers and with a list of questions for several books. ²⁹