Are Design-Based Regulatory Instruments Legitimate?

31 Pages Posted: 27 Feb 2015 Last revised: 18 Jun 2015

Karen Yeung

The Dickson Poon School of Law

Date Written: November 11, 2014

Abstract

From ancient times through to modern, design has long been employed for regulatory purposes. While criminologists point out that ‘target hardening’ (such as the installation of shatter proof glass) reduces the risk of criminal damage, behavioural economists demonstrate how default rules and other ‘nudge’ techniques can be designed into our social environment to elicit the desired behavioural change (such as painting more closely spaced lines on curved road bends to create the illusion that the vehicle’s speed is increasing to prompt drivers to slow down). But design-based regulatory approaches need not be confined to the external, social world. Not only can the biological functioning of plants and animals be modified with the aim of promoting specific policy goals, but the human body is itself a target through which design-based regulatory instruments may operate. Although some techniques are far from new (e.g. water fluoridation and food fortification to promote public health) more recent advances in the bio and neurosciences open up some intriguing, and potentially disturbing, possibilities.

What should we make of regulatory techniques that employ biological design? One leading philosopher – Neil Levy – argues that attempts to change one’s mind directly through the use of psychopharmacological means should be regarded as ethically equivalent to more traditional means for changing our minds (such as traditional talking therapies). Hank Greely has tentatively suggested that this ‘parity principle’ also applies to the means used by the state to control its subjects, at least where those subjects are convicted criminals serving time in state penal institutions. This paper critically interrogates these claims, by examining the legitimacy of these techniques, and asks whether our existing legal principles and doctrine are up to the task of identifying and imposing suitable limits and constraints on their use.

Keywords: human enhancement, public policy instruments, regulatory governance, neuroethics, design

JEL Classification: I100; K20; K42

Suggested Citation

Yeung, Karen, Are Design-Based Regulatory Instruments Legitimate? (November 11, 2014). King's College London Law School Research Paper No. 2015-27. Available at SSRN: https://ssrn.com/abstract=2570280 or http://dx.doi.org/10.2139/ssrn.2570280

Karen Yeung (Contact Author)

The Dickson Poon School of Law ( email )

Centre for Technology, Ethics, Law and Society
School of Law, The Strand
London WC2R 2LS
United Kingdom

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