technology in the age of anxiety – the moral economy of regulation

Review articleTechnology in the age of anxiety –the moral economy of regulation

Rights, Regulation and the Technological Revolution, by roger brownsword.Oxford: Oxford University Press, 2008, xii + 317 + (index) 7pp (£50 hardback).ISBN 978-0-19-927680-6.

1. REVOLUTIONARY HISTORY

Histories are marked by revolutions: agricultural, communications, political, eco-nomic and industrial, social and constitutional. One marker of the late twentiethcentury was the impulse of rapid technological change. With the rise of the regulatorystate and metamorphoses in the biotechnological and life sciences, information andcriminal detection sciences, allied with an increasing, sometimes insistent claim torights, the scope of regulation of and through technology exposed an urgent field ofinquiry. Roger Brownsword’s elegant and exhaustive examination of this conjunctionasks whether, in a community of rights and regulation, technology threatens to changethe social, cultural and moral economy and environment in a way that no aspirantmoral community can live with, even if the technology respects privacy and confi-dentiality or has been authorised by processes that are based upon free and informedconsent.1 We are engaged in nothing short of a continuing intellectual revolution inmodern scientifically based societies, a revolution that demands a revisitation of oldinstitutional forms and responses, including those of law itself. It is not just themechanics of the law’s response which are important, so also is its content – a contentinformed by concern for liberty, for the protection of the vulnerable and for thereinforcement of ideals.2 Otherwise we will be confronted with visions of a demo-cratic deficit in scientific citizenship; the demise of the rule law and inarticulate reignof the possible.3 This picture represents a core challenge for modern receptions oftechnology.

Rights, Regulation and the Technological Revolution is a complex, multi-layered,multi-dimensional book. If the central thesis may be shortly stated (pp 1, 2, 28, 269,286–294, 316–317), its exegesis is more demanding. It involves a moral millefeuilleand a sensible slicing that is marked by attention to ethical and international pluralism(‘cosmopolitanism’ in Brownsword’s analysis), and attention to an only developingregulatory maturity, involving wrong turns and right angles.

But, this is more than a study in the jurisprudence of regulation and of technology.The book also contains important and instructive essays in medical law (particularly),seeking, as it does, to explicate many of the background debates (for example on

1. R Brownsword Rights, Regulation and the Technological Revolution (Oxford: OxfordUniversity Press, 2008) (RRTR) p 316.2. Ibid, p 180.3. M Kirby Reform of the Law (Oxford: Oxford University Press, 1983) pp 238–239.

Legal Studies, Vol. 29 No. 3, September 2009, pp. 492–508DOI: 10.1111/j.1748-121X.2009.00135.x

© 2009 The Author. Journal Compilation © 2009 The Society of Legal Scholars. Published by Blackwell Publishing,9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

consent (pp 72–86) and information rights (pp 87–98), on the (legitimate and illegiti-mate) purposive interpretation of key texts such as the Human Fertilisation andEmbryology Act 1990 and embryonic stem cell research (pp 47–56, 168–184), prop-erty in human tissue (pp 61–68) and genetic databases and forensic collections (pp215–235), each of which is often treated in a more or less superficial way in some ofthe standard texts and commentaries, where judicial and legislative statements areoffered without background context beyond some preferred ethical standpoint. Andthere are considerations of bioethics generally (pp 32–47, 100–118), patenting andhuman life forms (187–195), gambling (197–201), genetically modified (GM) cropsand the environment (pp 46–47, 201–204), nanotechnology (pp 118–125) and thechallenges of globalisation (esp pp 185–211). And yet, on a number of occasions,Brownsword avers that this is work in progress (eg pp 85, 98, 173, 186, 229: ‘meritsfurther examination’; ‘we have only scratched the surface’; ‘there is still a great dealof interpretative work to be done on these general principles’; and – on regulatorycosmopolitanism – ‘a topic that merits a book in its own right’).

2. FIVE WALKS IN THE REGULATORY WOOD4

Notes from a very dense island: the digested read digested

Roger Brownsword maps the difficult terrain of technological regulation: here bedragons. It is all very complex and we need a sophisticated account properly to locatelaw in this new terrain. We have a problem; more accurately, a number of problems.The replacement of the Rule of Law by the Rule of Technology is a central issue in theTechnological Wood: there is no room for insouciance, still less for hubris. The stakesare alarmingly high. This constitutional Cluedo is a rattling good yarn: a whodunit andwho should do it wrapped up in complexities and conundrums as sophisticated asanything yet investigated by Lieutenants Theo Kojak of the NYPD or Columbo fromLos Angeles. Pull up a chair.

Short walks: the regulatory wood digested

(a) the moral commons

Brownsword’s moral commons surround the regulatory enclosure that we are tosurvey. The bounds of these commons of conscience are reminiscent of the dilemmaposed for Thomas a Becket in TS Elliott’s Murder in the Cathedral. They need to bemarked in extensuo, in part for what I take to be the centrality of it to his moralcommunity, and in part because it displays one of the key characteristics of the moralcommunity with which I want to take issue.

‘. . . the cumulative effect of seemingly benign individual choices mightrepresent a threat to the very conditions that make [agents’] actions morallymeaningful . . . if a community of rights is to function as a moral community, it isof the essence that agents try to do the right thing for the right reason. It matters,in other words, not just that agents act as if they respect one another’s freedom and

4. After U Eco Six Walks in the Fictional Woods (Cambridge, MA: Harvard University Press,1994).

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© 2009 The Author. Journal Compilation © 2009 The Society of Legal Scholars

well-being but that it is precisely because they respect one another’s freedom andwell-being that they act in this other-regarding way. In sum, if [technologicalapproaches] to social control, whether concerned with the prevention of crime orthe promotion of public health [or other ends], simply reduce[s] the risks to whichagents are exposed, all well and good; but if the effect is to corrode the conditionsthat underlie the very project of moral community itself, then this is a risk whichno community of rights can afford to ignore and which it surely will not wish torun.’ (p 239)

‘. . . [Thus] techno-regulation has importance both as a matter of theory andas a matter of practice. Indeed, as an ideal-type, [it] assumes a dual theoreticalimportance, conceptual and moral, by highlighting the distinction between thoseregulatory strategies that rely on an engagement with the practical reason ofregulatees and those that simply seem to achieve a desired pattern of behaviour.’(p 241)

At the theoretical level, Brownsword emphasises that individuals obey Code notbecause they should, but because they can do nothing else. Choice is removed: Codeis thus the start to the perfect technology of justice (p 242).5 Regulation throughtechnology, or code (techno-regulation as Brownsword inelegantly terms it):

‘. . . even if it makes for safer societies, fails to respect the values of goodgovernance especially the values of transparency and accountability; . . . [and] byundermining notions of respect and responsibility, is corrosive of conditions ofmoral community. From the point of view of a community of rights, these areserious objections, the former because it indicates a deficit in participatory rightsand the latter because it points to a threat to the possibility of moral community.’(p 242)

(b) the community of rights

An ideal type of ‘community of rights’ (pp 24–25), a ‘community that engages in areflective and ongoing way on the best interpretation of its commitments’ (p 273), isone that is rationally committed (p 276) to respect for categorically and universalis-able will or choice-based (p 275) human rights and human dignity (pp 274–275). A‘. . . moral community is something to be valued for its own sake, as the ultimateexpression of human dignity . . .’ (p 281), and the essence of human dignity is ‘theopportunity to lead an authentic moral life’ (p 259). Choice (including – centrally –that to commit wrongs as well as do good, but also to do the right things for the rightreasons (p 265)) is foundational to Brownsword’s moral community and his under-standing of a moral community.

The supporting pillars of Brownsword’s constitutional and moral arguments are –hardly surprisingly – built on foundations provided by Alan Gewirth6 and, in his

5. Citing Lessig ‘The zones of cyberspace’ (1996) 48 Stanford Law Review 1403 at1408.6. Reason and Morality (Chicago: University of Chicago Press, 1978) and HumanRights (Chicago: University of Chicago Press, 1982) exhaustively discussed and applied in DBeyleveld and R Brownsword Law as a Moral Judgment (London: Sweet & Maxwell, 1986),esp chs 4 and 7.

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analysis of regulatory opportunities and obstacles, on the work of Lawrence Lessig inhis Code and Other Laws of Cyberspace.7 Thus, from Gewirth, Brownsword arguesthat:

‘Amoralism itself is irrational . . . A [an agent] is now rationally bound torespect the rights of other agents – because, in defending himself against unwilledinterference with his freedom and basic well-being, A has committed himself to thegeneral principle that the generic conditions of agents should be respected irre-spective of whose agency benefits thereby.’ (p 269)

In and for this constitutional and moral community, there is one signal danger: thereplacement of the rule of law by the rule of technology. The rule of law, with itstraditional commitments, stands in contrast with the rule of technology, which repre-sents ‘a radically different approach, not just within law, but in the whole basis ofsocial channelling and ordering’ (pp 1, 2, 6). The switch, however, is a temptation forany regulator, perhaps especially but not exclusively for a technologically smartregulator, drawing from Lessig. But, this use of ‘Code’ – technologically drivencontrol of technology – may undermine the very possibility of a moral community;may overthrow ‘not just law but the moral law’ (p 286); ‘signing a death warrant notonly for law but also for moral community’ (p 28). The bioethical triangle (‘aparticular conjunction of ethical form and substance that reflects the way in whichcertain conceptions have come to dominate modern ethical discourse and debate’ (p32; and pp 35 et seq)) of utilitarianism, deontology and a dignitarian alliance willapproach and resolve these questions and problems differentially, as will a cosmo-politan, ethically plural, international community (pp 185–211). Here, the challengesare to identify how, ‘as a matter of principle, we can regulate for universal valueswhile also making exceptions for legitimate local difference’ and how national regu-lators can enforce their local standards ‘in the face of regulatory tourism, internationalregulatory arbitrage, and the rapid growth of online provision that recognizes nonational boundaries’ (pp 27 and 185–211).

Each community of rights has a similar capacity for moral judgement and humanrights are a core of human dignity. In a community of rights ‘individual autonomy iscelebrated’ (p 217), but this is also a community ‘where individuals might be judgedto have responsibilities to assist with collective projects that are designed to strengthenthe conditions of security and well-being that are essential for individuals to make themost of their autonomy’ (pp 217–218). But ‘no community of rights’ would reject thevery idea of background positive requirements. These would entail considerations ofrationality, reasonableness and proportionality and fairness (p 228). These largeclaims are, of course, open to a wide variety of interpretations, and have been thesubject of extensive discussion. For now, I have to content myself in recalling thatBrownsword argues that sovereign states that abandon a commitment to the Rule ofLaw may send out the wrong signals in resorting to the use of technology as a meansof enforcement of its moral standards. This does not mean that there are not verygeneral questions that need to be asked about such communities. Who has what rights?Which rights are to be recognised and what is their scope? How extensive are positiverights and responsibilities where these are recognised? What where two holders’rights conflict? How closely can and should we examine consent and the dignity ofchoice in a will-based theory of rights to ensure that they are valid and effective?

7. New York: Basic Books, 1999 and ‘The law of the horse: what cyberlaw might teach’(1999) 113 Harvard Law Review 501.

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(pp 199–200). Thus, of a community of rights, it may be necessary to distinguishbetween the different interests that potential rights holders might have, whether as,say, a community member, a consumer, a worker or an economically wealthy, rationalmaximiser, or one who is poor. Often times, these interests may, at best, overlap,perhaps less commonly coincide, occasionally conflict, between different rightsholders and in their different types of interest, let alone in the same rights holders intheir different roles.

In any reflective community (p 110) – ‘a community of rights is not a finishedproduct so much as an ongoing interpretative exercise’ (p 199) – such as originallyarticulated by Immanuel Kant (pp 43–44) – that aspires to be a moral community thereis no more fundamental threat than one that corrodes the conditions of human dignity.‘Human dignity . . . does indeed cut deep’ (p 201). For some dignitarians, it is the fearthat human biotechnology may achieve precisely what it sets out to achieve that is thethreat to dignity.

(c) the community’s constables

That a community requires and receives constables, tenders of the constitutionalcommons, is a given. The regular force is the regulators. The overall scheme of thebook concerns itself with the challenges (legitimacy, effectiveness, compliance andconnection) and opportunities of technological regulation – ‘whatever measuresregulators take to control and channel conduct in the desired way’ (p 7). Various bio-technologies, environmental and agricultural technologies, information andcommunication technologies (including those of surveillance) and neurotechnologiesform the ‘constellation of modern technologies’ (p 1) with which we are concerned.Regulation involves ‘a constant learning process’ (p 138), which will be especiallytrue when we come to the nanotechnological processes and applications with whichour constellational technologies will be supplemented (pp 118 and 120 et seq). Indeed,with such an emergent technology, with uncertain risks and prospective benefits, the‘legitimacy crisis becomes acute’ (p 131) and the regulatory challenge – knowingwhen to regulate, what to regulate and how – is ‘daunting’ (p 123). A regulator is ‘anagent or agency of government authorized to control and channel conduct’ (p 7); ‘theregulatory classes’ (p 257), collectively, are ‘stewards for the moral community’ (pp232, 316, 305–307). This stewardship entails ‘responsibility for the infrastructuralconditions that make agency possible’ while individual agents ‘owe it to one anotherto assist in securing those conditions’ (p 232). This is a timely reminder, as Tony Judthas recently cautioned that we need,8 that there are some things that the modern state,and especially the providential state, did and does well, before we set about disman-tling it: ‘It was not always self evident that the state is bad for you’.9

Each planet in Brownsword’s constellation is carefully explained and examined atdifferent points in the essay, as are the regulatory concepts of ‘style’ (pp 12–13),‘mode’ (pp 13–16), ‘pitch’ (pp 16–18), ‘phasing’ (pp 18–19), and ‘range’ (pp 19–21).While ‘ethical plurality is so deeply contested and conflictual’ (p 10), it is ‘axiomatic’that the regulation ‘should ensure that the rights of individuals are fully respected’(p 22).

8. Reappraisals: Reflections on the Forgotten Twentieth Century (London: Heinemann,2008) ch 1.9. Ibid, p 9.



(d) the community’s courts

The community’s regular force comes with undermen and women, in the guise ofjudicial officers, what Lawrence Bickel once called ‘the least dangerous branch’.10

Brownsword offers a number of commentaries on the tasks assigned to these guard-ians, and, in reviewing the discharge of their responsibilities, we find that they do notmeasure up particularly well.

One of the distinctive challenges presented to regulators by rapidly developingmodern technologies is ‘regulatory connection’ (p 160); keeping the law in sympathywith regulatory targets, for the ‘regulatory jungle is a shifting scene, what we seetoday might be gone tomorrow’. And these judicial interpreters face a choice too: to‘interpret and apply the law as they find it declared on the face of the legislation’ or to‘reconnect the law to the technology by adopting a creative approach’ (p 160). Toordinary lawyers, these are the statutory interpretation canons of the literal and thepurposive approach. There is a danger in the latter approach, which is that courts inadopting purposive interpretation, as they have shown a more marked tendency to doin recent years, might not only fall foul of the ‘principle of congruence’11 but alsohinder the need for a reconsideration of the law (p 161).

Brownsword’s site for a detailed consideration of these principles are two deeplycontested cases from reproductive technologies: R v Secretary of State for Health, exp Quintavalle12 and R (Quintavalle on behalf of Comment on Reproductive Ethics) vHuman Fertilisation and Embryology Authority.13 Both engaged interpretation of theHuman Fertilisation and Embryology Act 1990; the former the legitimacy of using theprovisions of the Act to sanction the creation of and research upon embryos createdusing the cell nucleus replacement technique; the latter the legitimacy of the regulatorin purporting to authorise the use of pre-implantation diagnostic procedures andtissue-typing capabilities. Here, Brownsword introduces and discusses what he calls‘three key distinctions’: ‘descriptive’ and ‘normative’ disconnection, ‘productive’ and‘unproductive’ disconnection and ‘ “intelligent” and “unintelligent” purposive recon-nection’(pp 165–167). Applying these distinctions of principle to the cases, Brown-sword concludes, respectively, that the House of Lords’ decision in the former case(first applying a purposive approach, and a subsequent literal approach) was togenerate a ‘moral panic’ and a rush to prohibition and, in the latter, a call for responsesto the newly developed techniques so that a life could be saved, witnessed the Houseof Lords engaged in unintelligent purposive re-connection. Of the engagements of thelevels of courts, Brownsword comments, sardonically, that they serve only to highlight‘the layering of interpretative tensions’ (p 171; although perhaps that is what the levelsof appeal are for) suggesting, first, that it is ‘wholly unclear’ what persuaded theHouse of Lords in Quintavalle 1 to adopt the literal interpretation in the first part ofits exercise, but not the second; and of Quintavalle2, asking how the House accountsfor its ‘quite extraordinary reading of the legislation’ (p 178). He concludes that whileintelligent purposive interpretation is in line with the value of congruence, so centralto the Rule of Law, the appeal courts might properly have considered whether regu-latory disconnection was more appropriate than their attempts at re-connection,

10. Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis,Irvington Pub, 1962).11. That the administration of law should be congruent with the rules as promulgated; L FullerThe Morality of Law (New Haven: Yale University Press, 1969) esp pp 209–210.12. [2001] EWCA Civ 29, [2002] QB 628; [2003] UKHL 13, [2003] 2 AC 687.13. [2003] EWCA Civ 667, [2003] 3 All ER 257; [2005] UKHL 28, [2005] 2 AC 561.

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giving regulators the opportunity to clarify their intentions or re-open a debate to drawout the legitimate bounds of regulation (p 184). And while Brownsword concedes thatit is often ‘easy to be wise after the event’ (p 184), he does not also consider (in thiscontext, though it emerges in his discussion of nanotechnologies) whether equallywise regulators (specifically legislators) might not exhibit wisdom in declining tointervene at the first opportunity. Imagine, in these cases, that the courts had beenpresented with the Human Fertilisation and Embryology Act 1984 or 1985 (as largeparliamentary majorities in favour of the thrice introduced Unborn Children (Protec-tion) Bills of those years presaged) rather than that of 1990 eventually carried forwardto the statute book.

In a constitutional tree of which courts are an important branch, we must insist (asBrownsword does) and be able to rely on the legitimacy of the courts themselves andthe claims that they make as regulatory stewards in their own right. The reason for thishas been most elegantly and fluently put in a different but related context by JosephWeiler,14 writing of the judicial protection of the human rights of non-EU nationals.He speaks to an important distinction in the responsibilities of courts, compared withbureaucratic regulators (in Weiler’s language) and parliamentary regulators.

Both scientific citizenship and a sense of strong democracy in biotechnologicalregulation require that courts develop a moral vision and vocabulary so that theyparticipate in shaping the moral economy of the emergent bio-economy. Weiler writesof the special responsibility of the European Court of Justice in an area which hasbecome:

‘socially, politically and ethically most delicate . . . [that] the current juris-prudence is unsatisfactory both in its reasoning and in its results. I also think thatit is important for symbolic, and not only for practical reasons, that the voice of theEuropean Court, within the proper bounds of the judicial function, should beparticularly pure.’15

In doing so, he helpfully and importantly distinguishes the particular responsibilitiesof politicians, bureaucrats and judges in together forging what he calls ‘an importantaspect of the moral identity of the emergent European polity’.16 The forging of such amoral identity, part of what Alan Hunt has called the ‘moral politics’17 of an age, liesin exactly the same challenge for domestic courts in dealing with domestic issues ofsocial policy. Weiler continues his depiction of the different responsibilities, or atti-tudes, of the different branches of the executive in this way. Politicians, sensitive to theelectoral politics, as they are, resort to softer or tougher parler vrai or even parler crutype of discourse, which, while situated in the inevitable contexts of the particularissue at debate, have the effect of sanctioning particular types of policy, of construct-ing an aspect of the polity. Bureaucrats, on the other hand, being close to politiciansin the shaping and delivery of policies, will ‘tend to suffer what might be called thebanalization of suffering’.18 Volumes create ‘cases’, problems ‘categories’ and solu-tions become ‘mechanical’.19

14. ‘Thou shalt not oppress a stranger: on the judicial protection of the human rights ofnon-EC nationals – a critique’ (1992) 3 EJIL 65 at 65.15. Ibid.16. At 65–66.17. A Hunt Governing Morals: A Social History of Moral Regulation (Cambridge: CambridgeUniversity Press, 1999).18. Ibid, p 69.19. Ibid, p 69.



This then produces the special place of courts in any system of constitutional lawand shapes their role in the constitution of any matter or subject within it. Courts,because they are removed from direct political pressures are also, hopefully, removedfrom the ‘banalization effect’, and, in particular, high jurisdictions:

‘. . . will have a critical role to play in safeguarding the values of commonhumanity which must counter the exigencies of [particular] policies . . . Of course,[courts] have to operate within a binding normative framework of rules and prin-ciples. But . . . [they also play] a role in shaping and developing the bindingnormative framework within which [they] operate . . . [Their] pronouncements notonly resolve specific disputes but also constitute an important voice in the overallrhetoric which is constitutive of the political culture of the polity.’20

Thus, surprisingly (at first sight), in my view, Brownsword offers less criticalcomment on the work of another court in a different clearing in the regulatory wood:surveillance technologies and a Woolf in regulator’s clothing. Discussing the Court ofAppeal’s decision in R v Chief Constable of South Yorkshire Police, ex p LS andMarper21 (holding that the retention of fingerprint and DNA samples, even absentprosecution or where there is an acquittal, is compatible with the European Conven-tion for the Protection of Human Rights and Fundamental Freedoms 1950; upheld ona different analysis in the House of Lords22) Brownsword’s concern is with theidentification of the privacy right under Art 8(1) and (2) (on which the House of Lordsdiffered from the Court of Appeal). In an otherwise careful analysis, Brownsword’sconcern is with the pace of profiling-led criminal justice, but generally accepting notonly that profile-led policing will ‘no doubt’ gain ground (p 222), but that we should‘not anticipate too much of the future’ (p 223). My concern is, rather, with the (cited)obiter of Woolf in his Appeal Court judgment, and the questions of legitimacy that thisraises of the courts, and the broader concerns that it identifies in Brownsword’s moralcommunity. Woolf observes that:

‘So far as the prevention and detection of crime is concerned, it is obvious thelarger the databank of fingerprints and DNA samples available to the police, thegreater the value of the databank will be in preventing crime and detecting thoseresponsible for it. There can be no doubt that if every member of the public wasrequired to provide fingerprints and a DNA sample this would make a dramaticcontribution to the prevention and detection of crime.’23

My concern is with the emphasised words, and where I take issue with Woolf is inevery assumption that they identify. Now, this kind of language may just about passmuster at a passing out ceremony at the National Police Academy, but to find itembedded in the judgment of the Chief Justice of England and Wales, in a case dealingwith fundamental questions of human rights, is astonishing. It is all the more alarmingin the context of the moral responsibility of regulators or regulator-interpreters, whichhas been the focus of Brownsword’s present argument. Quite simply, they have noplace, speculative and highly assumption-laden as they are. This goes to question

20. Ibid, p 69. R Dworkin Justice in Robes (Cambridge, MA: Harvard University Press,2006).21. [2002] EWCA Civ 1275, [2002] 1 WLR 3223. See also S v United Kingdom (2009) EHRR50.22. [2004] UKHL 39, [2004] 1 WLR 2196.23. [2002] EWCA Civ 1275 at [17]; emphasis added.

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whether we are or would be wise properly to put faith in courts, as presently consti-tuted, to discharge the responsibilities, even of the moral community as Brownswordconceives it. In Brownsword’s Fullerian language, such a trust would seem to me tobe incongruent. This alarm is amplified in the following section, where Brownswordturns to consider the use of genetic information in public health and the recent powersafforded to the UK Biobank (pp 223–237). Here, one part of his discussion turns to thequestion of citizens’ responsibilities to the moral community (I have no qualm withthat as such) and whether we can accept the state as justified in taking samples withoutconsent for the purpose of understanding more about detecting and preventing crime;an argument for conscription. Brownsword’s limiting condition is that this might befor serious crime (p 227; he rejects an extension to public health uses on this groundin favour of positive obligations in a community of rights, p 228) My concern is thatour recent experience with the Regulation of Investigatory Powers Act does not lendconfidence in the ability of public regulators, or more specifically officials, to beparticularly nuanced in their use of broader supervisory, supposedly prophylactic,powers, a good example in itself of a breach of regulatory legitimacy. Brownswordmight complain that I am engaging in a form of regulatory pollution in reading fromone experience to another, and that there is an important difference between regulatorsper se and their officials. But this strikes me as an appropriate moment for a dose if notof the precautionary principle, then of caution tout court. But, I think that Brownswordis less concerned than I am here, if I have read him correctly, because of the nature ofthe moral community that he proposes. I will return to this point.

(e) the cosmopolitan community

National governments exhibit varied responses to technological and other change,depending on the nature and degree of direct scientific or clinical involvement orexperience, the appetite of government to constrain market regulation, the nature ofsocial mores affected by changes in technological practices, and other more nuancedconsiderations. South Korea,24 Italy25 and Member States of the EU26 have recentlyintroduced significant reforms of bioethical laws, and the US President’s BioethicsCommission report of 2004 may well yet have international ramifications.27

Here, Brownsword avers that there is another book to be written (p 186; and I thinkthat he is correct), and I want to be careful not to upbraid him for not having done it.But this rough and difficult terrain throws up, I think, the most demanding part of ourjourney. If pluralistic communities are not designed for regulatory convenience(p 100), with cosmopolitanism (the cultural, social, moral and personal aspects ofglobalisation) we are faced not just with new regulatory saplings and the morallyknotted pluralism of the bioethical triangle, but with centuries-old growth from indig-enous species, cultural misunderstandings – from philosophies of law and attitudesand approaches to law reform – and the essentially tribal nature of the social fabric. AsBrownsword suggests, ‘while some regulatory projects might, in and of themselves,

24. South Korea, Bioethics and BioSafety Act 2004.25. Italy illustrates some of the tensions in recent reform of an unregulated jurisdiction to atightly regulated one; see Law on medically assisted reproduction, 14 February 2004, n 40(Gazzetta Ufficiale 24 February 2004, n 45).26. EU Directive on Tissues and Cells, [2004] OJ L102/48.27. US President’s Council on Bioethics report Reproduction and Responsibility: The Regu-lation of New Biotechnologies (Washington, 2004); Chaired by Leon Kass.



necessitate an international approach, the drive for harmonized global regulation isunlikely to be effective (nor perceived to be legitimate) where it seeks to steam-rollerover local culture and difference’ (p 157). Where technology moves beyond bound-aries of national legal systems, a double difficulty awaits regulators: ethical pluralityis likely to be even more contested, and regulatory capacity to control extra-territorialaction is even more limited: ‘In a world that is divided by economic, cultural andreligious differences, national regulators simply cannot count on cooperation beyondtheir borders’ (p 159). To which, I would add, that international regulators cannotcount on international cooperation either, whether at the level of the state (as acontracting party or not), enterprise or individual.

In my view, the communication technologies of the internet age do not diminishthis; they amplify and distort it. As Tony Judt has suggested, while the expansion ofcommunication, together with the fragmentation of information, offers a strikingcontrast with the communities of even the quite recent past, and while many people inthe world outside sub-Saharan Africa have access to ‘a near infinity’ of data:28

‘. . . in the absence of any common culture beyond a small elite, and notalways even there, the particular information and ideas that people select orencounter are determined by a multiplicity of tastes, affinities, and interests. As theyears pass, each one of us has less in common with the fast multiplying worlds ofour contemporaries, not to speak of the world of our forebears.’29

As I shall attempt to explain in my concluding paragraphs, I am wont to believe thatthis rather suits the vision of the moral community in which Brownsword would haveus place our allegiances.

For the present, however, I can return to Brownsword’s analysis of the challengesof regulatory cosmopolitanism (pp 185–210), which he sketches in a number of ‘testcases’ (p 186; he counts three, I count four: I’ll defer) and to reflect on his conclusions(pp 312–318). Those cases are of patents and the ‘moral exclusion’ (pp 187–195); ofcross-border gambling services and GM crops (both relating to moral exclusion andmarket access (pp 195–204) and of cyberspace and regulatory insulation and culturalexclusionism (pp 205–210).

Brownsword offers the assumption that each community of rights has a similarcapacity for moral judgement (which his commitment to equal worth entails), butfurther that members may believe that in pooling resources in a regional office (such theEuropean Patent Office) ‘not only will there be a gain in regulatory economy andefficiency but also an improvement in the quality of moral judgment’ (p 195). Here,then, members would countenance delegation not just of full technical jurisdiction tothe regional office, but full moral jurisdiction too. Now, while something may turn hereon what we understand by ‘improvement’ – which may of course tend towards morecaution or more risk taking – evidence from analysis of the phenomenon of ‘risky shift’(the tendency of people to make decisions that are more extreme when they are in agroup, as opposed to a decision made alone or independently)30 in sum may suggest the

28. Op cit, at 5.29. Ibid; emphasis added.30. Participating in discussion, members of a group tend to advocate riskier courses of actionthan individuals who did not participate in any such discussion. The classic introductory studyremains that of S Moscovici and M Zavalloni ‘The group as a polarizer of attitudes’ (1969) 12Journal of Personality and Social Psychology 125. I first learned of this phenomenon from thelectures of Jack Dowie at the University of Kent in 1974–1975; whether, and if so in what ways

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need for cautionary conclusions about moral delegation. This more especially where weare dealing with plural communities of rights none of which ‘is a finished product as somuch an ongoing interpretative exercise’, which ‘each community must take forward inits own way’(p 199) in order to thus establish ‘ownership’of its rights project.All of thissuggests at best indeterminacy, a conclusion reinforced by Brownsword’s more hesitantapproach to GM crops and free trade (pp 201–204): ‘it is important . . . that anyallowance made for local scientific judgments is not open to being exploited as pretextfor trade protectionism’(p 204). Some might be driven to conclude that this is preciselywhat drives ‘local judgment’, especially of a scientific kind, but also more generally inpleading ‘local community’. On the one side we are faced with the prospect of acompetitive moral disarmament race; on the other, underscoring the core problemidentified by Linda Nielsen and Berit Faber, that ‘since ethical concerns are difficult todocument and might be perceived as paving the way for ulterior national standards thatmight obstruct the World Trade Organisation’s mission to promote international trade,it is difficult to take account of these concerns’.31

This is exacerbated where a state – as did the UK in the debates over embryonicstem cell research – engages self-consciously in ‘regulatory arbitrage, its intentionbeing positively to attract business’ (p 205). Here, we are facing a strategic zero sumgame: a state participant’s gain or loss is exactly balanced by the losses or gains of theother participant(s). In that event, the states with the most to lose (morally) may welldecide to stay out of the (otherwise desired) global game altogether and set its(economic) losses against its (moral) gains, a situation even more likely when theentry costs to the regulatory game in terms of economic start up are likely to besignificant (in at least economic terms) anyway. The first task for a regulatory cos-mopolitan must then be to persuade all players to come to the table irrespective of theperceived moral and monetary costs and benefits of doing so. This would be oneexplanation (there are others plausible) for the appearance of Costa Rica as the leadsponsor for the United Nations Declaration on Human Cloning (discussed by Brown-sword pp 36, n18, 101, n5).

But just because the internet and other forms of ‘cyberspace’ have opened upopportunities and possibilities as much as thrown up challenges, it does not follow thatwe have a regulatory vacuum; ‘we should not jump to the conclusion that we arefacing a regulatory crisis’ for ‘we might view regulation as in a permanent state ofcrisis’ (p 211). Even if we suppose this to be true, it does not offer a very secure, orcomforting, filing for the vacuum. Indeed, limits to legal regulation are clearly advo-cated and seen as desirable by some commentators: ‘. . . in the end, internationalborders can do little to impede the reproductive practices of couples and individuals’.32

and to what extent and effect, this analysis might be applied to international treaty negotiationsremains, for me at least, presently unknown. But for an exhaustive articulation of the limits and(limited) possibilities of (successfully) negotiating international treaties in a related field, see SBartlett Environment and Statecraft: The Strategy of Environmental Treaty-Making (Oxford:Oxford University Press, 2003) esp pp 49–85, 292–307, 355–359 and L Susskind Environmen-tal Diplomacy: Negotiating More Effective Global Agreements (Oxford: Oxford UniversityPress, 2004) passim and esp pp 73–78 on the importance of ‘epistemic communities’ in thenegotiations processes. I suspect that there may be important generic read-overs available hereinto the world of technology regulation.31. Ethical Principles in European Regulation of Biotechnology: Possibilities and Pitfalls(Copenhagen: Biotek, 2002) p 22.32. L Silver Remaking Eden: Cloning, Genetic Engineering and the Future of Humankind?(London: Weidenfeld & Nicolson, 1998) pp 114–115.



And, as Lee Silver observes, of cloning, ‘. . . the market place – not government orsociety – will control cloning. And if cloning is banned in one place, it will be madeavailable somewhere else . . .’.33 This scepticism stands in contrast to the emergence ofother demands for supranational regulation of bio-medicine and the identification ofappropriate fora which have come to occupy the international community in the lastdecade. As American political scientist Francis Fukuyama, in his monograph OurPosthuman Future; Consequences of the Biotechnology Revolution,34 has observed,one of the greatest obstacles to thinking about a regulatory regime for human bio-technology ‘is the widespread belief that technological advance cannot be regulated,and that all such efforts are self-defeating and doomed to failure’.35

‘[R]egulation seldom starts at the international level: nation states have todevelop rules for their own societies before they can even begin to think aboutcreating an international regulatory system . . . we do not know at this pointwhether an international consensus on the banning or strict regulation of certaintechnologies . . . will emerge, but there is absolutely no reason to rule out thepossibility at this early stage in the game.’36

Against this Gregory Stock37 has cautioned that the time for ex ante regulation is past;the best strategy now is to fashion ‘second phase correction of those adverse socialeffects that seem likely to flow from technology being available only to a privilegedelite’.38

Brownsword returns to consider Fukuyama’s analysis in his concluding remarks(pp 309–318). He is less sanguine than Fukuyama, and more sceptical of his analysis.The internet does not necessarily affect redistribution; it is not lawless (‘malware ofone kind or another is threatening the integrity of the system’ (p 311)); offline ‘evils’are transformed and amplified by the internet and some advances of informationtechnology are quite ‘insidious’ (p 312) Biotechnology, however, requires a differentresponse. Here the threats may be less obviously dangerous, but they are nonethelesspresent. Foremost, as Fukuyama has also proposed, is that to the fabric of social andmoral life; specifically to the very notion of human dignity. Nonetheless, Brownswordcautions that it would be mistaken to believe that the regulators’ smartest responsewould be to turn to technology itself to control our risks and harms, as much as itwould be to let these dangers proliferate unobserved and hence necessarily unchecked(p 315). Human dignity relies on a complex matrix of characteristically humancapacities – such as the ability to reason, to communicate, to make choices, toexperience and suffer evil – without which there would be no experience of ‘thedignity of dealing with adversity, and the emotional gamut that goes with it’ (p 315).

Brownsword sees two possible responses: to abandon regulation and resign to aregulatory race to the bottom (p 315; by which I presume we infer the market?). Analternative is to ‘try at least to hold the regulatory line’, checking constantly to ensurethat technology does not ‘threaten to change the cultural environment in a way that noaspirant moral community can live with’ (p 316). We are then thrown back to review

33. Ibid, p 144.34. London: Profile, 2002, pp 190–91.35. Ibid, p 187.36. Ibid, p 190.37. Redesigning Humans (London: Profile Books, 2002).38. This summary is Brownsword’s in his discussion of ‘regulatory phasing’ (p 19).

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that notion of community with which Brownsword has presented us to assess thesealternatives. That is the burden of my final random walk.

3. BROWNSWORD’S MORAL COMMUNITY: REVISITED

My real concern with Brownsword’s thesis lies not with his fear of exclusion ofmoral community, but with the kind of community that he envisages, or that we maybe becoming. His moral community has two main townships: human rights andhuman dignity. But, confirmed by the late appearance of Alan Gewirth, the consti-tutional citizen of this ideal moral community, is rational economic man: CitizenConsumer, dedicated follower of Choice: rational, atomising, an attic autonomist.Brownsword’s moral community has no socio-demographics and, like its Kantianforebears, appears to have no emotion and little humility. Despite claims to thecontrary, his rational citizens seem to have less in common with the fast multiplyingworlds of their contemporaries, to recall Judt. To expand and explain this, I need toturn outward to consider the wider contexts of these technological and regulatorymetamorphoses.

German social theorist Ulrich Beck has warned of developments of modern tech-nology having set in motion processes which undermine the ‘idea of democracyfrom inside’.39 Central issues of public policy, affecting the future of society, for-merly the subject of public debate to shape the political resolve, were and are beingby-passed by technological developments that cannot be foreseen because they areunintended. This Beckian notion of undermining the idea of democracy from withinhad been foreshadowed by Michael Kirby nearly 20 years before. Cautioning of thedangers of the law failing to keep up with science, Kirby argued that because scienceand technology are advancing rapidly, if democracy is to be more than a ‘myth anda shibboleth’ in the age of mature science and technology, more than a tri-annualvisit to a polling booth, we need a new institutional response. Failure to articulatesuch an approach would have profound democratic consequences: failure to appre-ciate the phenomenal gravitational pull of science and technology and to chart aconsequent response or even an anticipatory framework would entail societiesresigning themselves to being taken where the scientists and the technologists’imagination leads:

‘That path may involve nothing less than the demise of the rule of law as weknow it, . . . [where] the dilemmas posed by modern science and technology, par-ticularly in the field of bioethics, are just too painful, technical, complicated,sensitive and controversial for our institutions of government.’40

The result of these intersections is that we can identify the anxiety produced by rapidscientific advances producing a new, and perhaps deeper, anxiety. In their reportScience and Society,41 the United Kingdom House of Lords Select Committee onScience observed that ‘society’s relationship with science is in a critical phase. . . Public unease, mistrust and occasional outright hostility are breeding a climate of

39. U Beck Ecological Politics in an Age of Risk (Cambridge: Polity, 1992) p 203, cited inJ Black ‘Regulation as facilitation’ (1998) 61 MLR 621.40. Kirby, above n 3, pp 238–239.41. House of Lords Papers, Select Committee on Science & Technology, Third Report,Science and Society 2000, p 1.



deep anxiety among scientists’. Biotechnology seems to have arrived at – perhaps inpart comprises – a defining constitutional moment within, for example, the UK, theEU, Australasia and in the wider international polity. Calestous Juma, of the KennedySchool of Government at Harvard, writing for the United Nations Conference onTrade and Development (UNCTAD), has observed that ‘Advances in science andtechnology have become key drivers in international relations’. Ways must be found,he suggests, to provide ‘a forum for global consensus building in scientific issues’.42

With the development of biotechnology and the emergent bio-economy comes theopportunity, almost the responsibility, to continue the process of defining the status ofpolitical entities and unions as polities beyond their economic bases. This arrives,hardly surprisingly, at a time when in international law generally, in internationalhuman rights law specifically, and in a drilled-down fashion, in domestic legal systemsmore particularly, the responsibility of state and non-state actors to secure more thaneconomic ideals is being actively debated.

In this context, the regulatory agenda has become filled with questions of compe-tition law, intellectual property rights, licensing and registration. And, with theincreasing precision of genetic targeting in pharmacogenetics and the related area ofpharmacogenomics, more important become questions of social acceptance, whichconsequently move upstream. These questions are amplified in the development andapplication of nanotechnologies and neurotechnologies.

The reason why defining this constitutional moment for biotechnology (andmutatis mutandi other technologies) is so important is because we stand on thethreshold of what some have argued to be a new dimension in the relationship ofhuman sciences to biotechnology. Stan Davis and Christopher Meyer have argued thatwe are moving from the information age to what they have proposed should be calledthe bio-economy. Biotechnology, they suggest, will ultimately spread throughoutevery economic sector, just as computers did in the information age. Fashioningresponses to these forces is the first and perhaps most central task for biomedicaldiplomacy. It is one to which the study of regulatory law, as part of a humane reflectionon science, must both urgently attend and contribute.

The fluid organisation and structure of many modern enterprises, the process ofinternalising markets43 and the recognition of multinational firms as efficiency-seeking firms44 combine to draw more countries into the global economy via theactivities of multinational corporations. Writers place different degrees of emphasis onthe processes: some talk about the end of the state;45 whilst others talk more in termsof the changing role of the state in an era of globalisation. States find that their role hasbecome increasingly complex in a more highly interdependent world and take on the

42. Science and Technology Diplomacy; Concepts and Elements of a Work Programme(New York: United Nations, 2003) p 3.43. The extent to which companies invest capital offshore and establish wholly or jointlyowned subsidiary companies overseas rather than just sourcing goods via systems of interna-tional trade; see RE Caves ‘The multinational enterprise as an economic organisation’ inRE Caves Multinational Enterprises and Economic Growth (1982), reprinted in JA Friedan andDA Lake (eds) International Political Economy: Perspectives on Global Power and Wealth(New York: Bedford/St Martins, 3rd edn, 1997) pp 139–153.44. JH Dunning Multinational Enterprises and the Global Economy (Essex: Addison Wesley,1993) pp 79–80.45. For example, K Ochame The Borderless World: Power and Strategy in the InterlinkedEconomy (Pensacola: Ballinger, 1990); also K Ochame The End of the Nation State (New York:Simon & Schuster, 1996).

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role of attempting to attract international capital rather than of regulating it.46

American strategist, historian and legal academic Philip Bobbitt, in his monumentalbook, The Shield of Achilles,47 argued that the world of the nation-state is ending andthat the new context for the exercise of authority, including legal authority, was marketstates, which exist to maximise opportunities for their citizens. The challenges facingthis new society are principally nuclear weapons, international communications, andthe technology of rapid mathematical computation. The ways in which the market-state copes with these challenges will structure the conflicts of the new society. In thisnew world order, the legitimacy of governments over moral and social issues isseverely diminished and the practical reach of their power substantially limited. OnBobbitt’s account, the market state is legitimated by its ability to increase choice andopportunity rather than any substantive values. As a result, it has lost the right toenforce morality. His examples are wide ranging.48 What Bobbitt’s insights, analysisand arguments direct us towards, primarily, is a question of constitutional order andconstitutional importance. Critically, this draws our attention to the importance of therelationship between market states and their rights and duties inter se, and also theimpact of this on domestic communities. It also underscores the importance ofresponsibility.

Rowan Williams, the Archbishop of Canterbury, speaking in December 200249

sometime took as his theme, as Jonathon Montgomery explains in his inauguralprofessorial lecture,50 the argument of the Bobbitt and responded that in such a world,government and culture – the ability to locate the choices we make within a frame-work of values – drift apart. Elsewhere, he had observed that making mature choicesinvolves closing down some possibilities as well as opening up others.51 Pursuingchoice alone, as an intrinsic good, undermines opportunities to build up a consistentpattern of decision making and robs us of the chance to build a framework of meaning,of which morality is an important part. Choice in this sense is actually in conflict withautonomy, understood as living according to one’s own system of values, because itundermines the creation of a value system.

There is nothing inherently wrong with markets and Williams and, followinghim, Jonathan Montgomery, do a small interpretative disservice to the main importof Bobbitt’s theses, even if encouraged by some of the specific examples thatBobbitt himself deploys, in assuming that the market state is inherently demeaning,inherently wrong and that the main problems of market states is in their relation-ships with their individual citizens, although, again, Williams’ thesis has much tocommend it and he draws, sometimes appropriately, from Bobbitt. It is here thatWilliams and Montgomery’s extension of Bobbitt have most purchase in myreading of Brownsword.

It is possible that on this analysis we may regard biotechnology as a form of whathas been called ‘miswanting’: the paradox of choice in which more is less, and the

46. For example, S Strange States and Markets (London: Continuum, 1988), P. Cerny TheChanging Architecture of Politics: Structure, Agency and the Future of the State (ThousandOaks: Sage, 1990) p 237; R Roscrance ‘The rise of the virtual state’ (1996) July/August,Foreign Affairs.47. P Bobbitt The Shield of Achilles (London: Penguin, 2002).48. See, eg p 230 for his analysis of the current position and pp 735–736 for a vision of thefuture.49. The text of the speech is available at http://www.archbishopofcanterbury.org.50. ‘Law and the demoralisation of medicine’ (2006) 26 LS 185.51. R Williams Lost Icons (London: T & T Clark, 2000) esp ch 1.



concomitant tendency to overvalue the outcome of choice.52 It may even be that choicerather than science or medicine is producing an overabundance of anxiety and ratherthan doctors or medicine, choice is becoming the new iatrogenic illness, as we becomeoverwhelmed by the monumental importance that we now reserve for the act ofchoosing itself; what Hen ten Have has called ‘hypergoods’.53 The speed and pace andeven the direction of scientific change produces new, radical uncertainty and henceanxiety: ‘when people face what nothing in their past has prepared them for they gropefor words to name the unknown, even when they can neither define nor understandit’.54

German conservative theologian and philosopher Hans Jonas, in a different butcompelling analysis, argued that modern technology, which has produced an ever-deeper penetration of nature and is propelled by the forces of market and politics, hasenhanced human capability ‘beyond anything known or even dreamed of before’.55

Accordingly, the enormously enhanced power which modern science and technologyhas helped to bring to human beings and their dominion of the world brings with it achange in responsibility. Responsibility that is a ‘correlate of power and must becommensurate with the latter’s scope and that of its exercise’.56 In his analysis, thismeans that we need to construct and identify a metaphysically based theory ofresponsibility – one which addresses the responsibilities of humankind to itself, todistant posterity and to all terrestrial life: a bio-economy understood in a broad andencompassing sense.

The imperative in identifying this theory of responsibility is to enable us ‘todiscriminate between legitimate and illegitimate goal settings to our Prometheanpower’.57 The enlarged nature of human action – enlarged in magnitude, reach andnovelty – raises moral issues beyond inter-personal ethics and requires reflection;responsibility is centre stage and calls for lengthened foresight – what Jonas calls a‘scientific futurology’.58 This responsibility should be informed by a ‘heuristics offear’, which will help to disclose what is possibly at stake; what values and traditionswe may pass up; what approaches and opportunities we ought in all conscience todeny ourselves. In short, ‘what we must avoid at all cost is determined by what wemust preserve at all cost’.59

The types of ethical issue with which we engage in the bio-economy then needcareful delineation and description. Take the illustrative question of patenting andbiotechnology. Here, there has indeed been much discussion of the ethics of patenting,as Brownsword reviews, but far less of the empirically significant question of itseconomics. And in the ethical discussions, there has been more on the question ofordre public and the economic order than on the effects of successful patent protectionand the distribution of power. As Peter Drahos has commented, ‘Even if the shift

52. B Schwartz The Paradox of Choice (London: HarperCollins, 2005).53. H ten Have ‘Images of man in the philosophy of medicine and bioethics’ in M Evans andK Sweeny (eds) The Human Side of Medicine (London: Royal College of Physicians, 1998)p 203.54. E Hobsbawm Age of Extremes: The Short Twentieth Century 1914–1991 (London:Michael Joseph, 1994) p 287.55. H Jonas The Imperative of Responsibility (Chicago: University of Chicago Press, 1984)p ix.56. Ibid.57. Ibid.58. Ibid.59. Ibid.

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towards the marketisation of biological resources by means of intellectual propertyrights produces dynamic efficiencies in food and health, it seems probable that thebenefits of these gains will in global terms be unequally distributed’.60 In short,questions of allocative justice have predominated at the expense of an equal consid-eration of aspects of distributive justice; there has been a concentration on what shouldbe protected rather than who should benefit from that protection. Brownsword isconcerned with what does not go to market (an important concern) rather than withwho gets what from the market. ‘Marketisation’ of biotechnology will raise issues ofpower and distribution and part of the project, to which the role of ethics in biotech-nology is to be devoted, of ‘rethinking equity in health’61 and other interests, must bedevoted to these distributional issues. Only in this way can we be assured thatbio-ethics remains relevant in the bio-economy.

Thus, 10 years into the new millennium, and some questions now strike me asfoundational in the technological bioeconomy. To what extent and how will thetechnologies affect and address the oppressed? Who, how and in what way will theyliberate? I do not intend this to mean how will they raise up the technologicallydeficient, rather, the poor, the excluded, the weak, in short, the oppressed. What effectswill they have on power: its existence, deployment and use? How will we receivetechnology: openly and equanimously, or surreptitiously and in a subterranean way?The history of, say, medicine is a long one and our concerns with modern so-called‘high-tech’ medicine, a relatively recent one. It may be the medicine of the future, butit comes from a fairly recent stock. This long view of history suggests that we may atleast be prudent in seeking to adopt an equally long view of the future; a ‘lengthenedforesight’62 in order to help us avoid replicating and amplifying mistaken approachesand solutions, or applying methods and outcomes suitable for the resolution of one setof issues to others which will not bear them. It is not that choice is unimportant butthat, as a value in the art of medicine, it can come to be overvalued. It is possible thatBrownsword’s endorsement of an ‘anticipatory regulatory regime . . . ready for rollout’ (p 289) combining agency licensing powers geared for flexibility and connectionwith an Executive stop-and-review power designed for clarity and legitimacy, how-soever conceived, forms an essential part of this scientific futurology. Boaventura deSousa Santos has cautioned us to characterise the present character of law as the alterego of science rather than its conscience. Roger Brownsword’s essay is an importantreminder of the need to search also for its soul, but nor should we lose sight of thepeople who inhabit the present and immediate futures, and whether regulatory chal-lenge and opportunities present socially progressive or regressive outcomes: alloca-tion or distribution frame two different conceptions of the moral economy ofregulation.

derek morgan63

60. P Drahos ‘The rights to food, health and intellectual property in the era of the “biogopo-lies” ’ in S Bottomley and D Kinley (eds) Commercial Law and Human Rights (Aldershot:Ashgate, 2001) p 215 at p 228.61. Taken from the title of a roundtable in Geneva in 1999, International Roundtable in‘Responses to Globalisation: Rethinking Equity in Health (Geneva, 1999).62. Jonas, above n 54 esp pp 25–50.63. Sheffield Law School.



technology in the age of anxiety – the moral economy of regulation

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