THE RIGHT TO REFUSE ENHANCEMENT AND THE DOPING ANALOGY
Because its overarching idea is self-determination, cognitive liberty implies the permission to use but, by the same token, to refuse mind-altering tools. It opposes any mandatory use of psychoactive substances—be it for therapeutic or enhancement purposes. Before the enhancement debate, a right to abstain from drug use was barely worth mentioning.”11 However, it may likely become a key consideration in coming regulations of neurotools. Therefore the idea of cognitive liberty can and should be embraced not only by transhumanists and drug liberals, but also by bioconservatives who often ground their case against enhancement on the perils of a society in which drug use becomes an uncritically accepted part of daily life.42 Even if individuals are not coerced in a strict sense and retain the formal power to reject enhancing themselves, the idea of cognitive liberty may be more demanding and include freedom from societal and economic forces or soft coercive influences on people to alter their minds.xiv
It does not take a clairvoyant to predict that liberal regulatory schemes will cause a widespread use of enhancements, especially in competitive fields such as job markets in a economy of knowledge. Artists and writers, software programmers, academics, freelancers, and CEOs will be tempted to resort to performance-enhancing tools, first to meet urgent deadlines and then, perhaps, to cope with informational overload and increasing demands of the job market. At this point, the often invoked analogy of enhancement and doping in sports comes into play. Proponents of enhancement argue that athletics is sufficiently dissimilar to other parts of social life. In many aspects, their diagnosis is correct: sport is competition for its own sake, the achievement of arbitrary goals (to run so many meters jumping over hurdles, to put an object into another object only touching it with the feet, etc.). The rules of sport seek to preserve and promote the spirit of sport and specific notions of fairness that form the basis of the sport’s immanent aim of constructing winners and losers. Doping potentially undermines the very endeavor of competitive sports. With doping, we may “win races, but lose racing.”xv Because of its peculiarities, the rules of sports and its understanding of fairness and competition might—and should—not be those by which other domains of social life are governed. As a consequence, anti-doping arguments cannot be transferred to other fields by simple analogy.
Nevertheless, doping regulations provide a persuasive answer to a structural challenge for autonomy in competitive fields where the decisions of some actors pressure others into following their lead. Once enhanced persons outperform abstainers, win the pitches and get the jobs, the latter are very likely confronted with the dilemma of either giving in to enhancement or taking negative social and economic consequences upon themselves. To abstainers, a merely formal guarantee of autonomy might not be worth much in face of strong factual forces. The objective of doping regulations is best conceived as the protection of athletes against competitive forces to expose themselves to risks above a certain threshold. The same reasoning applies to mind-doping. So whereas cognitive liberty entails the right to enhance, it equally entails the right to refrain from enhancing. Whoever appeals to cognitive liberty to argue for her right to use drugs cannot, on pain of self-contradiction, deny others the right to refuse so.xvl
This conflict between the interests expressed in rights to and against enhancements cannot be resolved by simply favoring one side over the other. Countervailing interests have to be carefully reconciled by developing an objective threshold of what one may call “legitimate socially acceptable risks.” Health concerns are among the most important, but by no means exclusive, considerations. Here is an analogy with today’s most widespread enhancer— coffee: although its consumption increases vigilance and may thus provide a competitive edge, the idea of banning coffee from offices to protect non-coffee drinkers appears absurd. Apart from established cultural praxis, the main reason is that the negative effects of coffee are considered socially acceptable risks. The same might not be true for many pharmaceutical enhancers. Whereas no one can seriously expect and demand to live in a risk-free world, citizens are entitled to a societal risk management that demarcates the realm of acceptable risks and seeks to minimize all the others. The right to refuse enhancements therefore gains momentum and outweighs the right to their use if—and arguably only if—the particular substance or device entails risks above a threshold of socially acceptable risks. Where the borders of the realm of acceptable risks precisely run has to be defined by democratic legislators. They should roughly correspond to the regulation of other perils of life, from nuclear power plants and car traffic to extreme sports.
The doping analogy calls for a two-step regulatory system that differentiates between competitive and noncompetitive use. Competitive contexts in which individuals who prefer to abstain are pressured into using enhancements have to be regulated more tightly. This supposedly necessitates gatekeepers and, as a means of last resort, banning those neurotools that exceed a threshold of socially acceptable risks from competitive domains. Bans would, of course, raise a host of practical problems much more intricate than anti-doping laws. How to ensure that, for example, academics or self-employed businessmen refrain from using enhancements? Here, the creativity of regulators—and of society—is put to the test. In academia, where regulatory issues are often solved by relying on credibility and reputation of researchers, soft measure such as codes of conducts or self-commitments could be introduced.53