The Challenges Posed to Private Law by Emerging Cognitive Enhancement Technologies

Abstract

We normally think that people’s responsibility diminishes when mental capacities are lost and that responsibility is restored when those capacities are regained. But how is responsibility affected when mental capacities are extended beyond their normal range through cognitive enhancement?

For instance, might some people – e.g., surgeons working long shifts in hospital – have a responsibility to take cognitive enhancement drugs to boost their performance, and would they be negligent or even reckless if they failed or refused to do this? Alternatively, once enhanced, would people acquire new and possibly greater responsibilities in light being more capable? Could they be blamed for failing to discharge those greater responsibilities, and does this make them more vulnerable to liability if things go wrong?

The off-label use of prescription drugs such as Modafinil and Ritalin is on the rise, but although the current literature covers issues such as safety, effectiveness, coercion and justice, these drugs’ effects on people’s responsibility have not been investigated. The standards which the law currently uses to assess people’s responsibility presuppose that human mental capacities are capped at a particular level. But if humans can surpass this level of mental capacity through cognitive enhancement, then this calls for a re-assessment of those standards.

Keywords: responsibility, cognitive enhancement, capacitarianism, private law, standard of care