(Draft –not for citation)
Justice vs Beneficence: What Regulatory Virtue for Nano-Regulation
Hailemichael Teshome Demissie*
Introduction: Nanotechnology and Regulation
Once a heresy, nanotechnology is fast developing as the orthodoxy of contemporary
technoscience. However, its development has not been readily apparent for all to see. The
inconspicuous march of nanotechnology is rightly dubbed as ‘a tsunami’-a metaphor that
captures the stealth and transformative potential of the technology. For a technology that is
being incorporated in consumer products at a growth rate of 400% over three years, ‘a
tsunami’ is more than a fitting metaphor.1 This figure, obviously, does not give the whole
picture for it is but a modest estimate. It does not include industrial products as opposed to
consumer products and is not supposed to account for the crucial contribution that the
technology makes to the advancement of the entire science and technology endeavour.
Besides the nettlesome issues of risk to human health and the environment which, in the heat
of the moment, could be unduly neglected, there are innumerable reasons that call for a
renewed vigilance in regulating nanotechnology. Such reasons include the speed at which the
technology is diffusing, the relatively low entry-cost for research and development (R&D),
the low public visibility, the fact that the development of the technology is still driven by the
business-as-usual scramble for markets and profits despite the enormous potential of the
technology which may defy the machinations of the market, and, above all, its potential to
alleviate and eradicate the sufferings of the needy by catering for their bare necessities.
Regulating nanotechnology is of utmost importance for humanity for the technology is such
that it endows humanity with the capacity to achieve what it failed to achieve by political and
other means: social justice.2
*PhD Candidate, The Centre for Technology, Ethics and Law in Society(TELOS), King’s
College London, email: hamekdes@yahoo.com
1
2
National Geographic , 2006, p.98; Industry Week, 2009, p.38
Koepsell, 2009, p. 163
1
Owing to the sheer diversity of the fields it covers and its convergence with other
technologies, nanotechnology and its regulation epitomise the issue of the global governance
of science and technology. The regulation of nanotechnology is but a caricature of the
ongoing global human engagement with contemporary technoscience ‘as a total
sociotechnical R&D, manufacturing, and regulatory enterprise’.3
Humanity cannot afford to undergo another fit of ‘regulatory sclerosis’ in respect of
nanotechnology for the consequences of such failure are not only unprecedented but are
thought to be profoundly existential. Cognoscenti who, owing to their specialist expertise,
are better positioned to see the velocity and direction of nanotechnology have registered their
standing advice for society: extraordinary regulation is required to address the unprecedented
scenarios of the torrents of nanotechnology.4 It is also suggested that such extraordinary
regulation could not be achieved with the common understanding of regulation dedicated to
the amelioration of the vagaries of the marketplace.
Besides market regulation, the major preoccupation of any regulatory scheme engaging with
technology is risk regulation where it aims at preventing or managing the hazards a
technology might pose. These conceptions of regulation are, however, on the verge of
relegation to what may be referred to as the ‘traditional concept of regulation’.5 The
regulation scholarship is now well versed with the ‘expanded concept of regulation’ where
market and risk regulation are but some of the features of ‘the regulatory enterprise’.6
Rationales of social solidarity, inclusion, redistribution and sustainability are now turning
mainstream in the ‘expanded concept of regulation’ and could attain the status of ‘new
orthodoxies’ before long. The regulation of nanotechnology must ensure that the ethical
imperatives that underpin the social solidarity, inclusionary and redistributive ethos are duly
and effectively engaged.
This development in regulation thinking has taken place at an opportune moment for
nanotechnology regulation as it generally coincided with the advent of the technology. The
3
McGinn, 2010, p.123
4
Drexler et al, 1991,
5
In relation to ‘forms of regulation’, the reference to ‘traditional forms of regulation’ is not uncommon.
Brownsword, 2004a, p.220
6
Prosser, 2010a, p.4; Gammel et al, 2008
2
growing interest in the social solidarity, inclusion and redistributive rationales of regulation
of technologies finds expression in institutions such as benefit-sharing and the designation of
resources as common heritage. These institutions are largely incompatible with the workings
of the market or the regulation promoting it. Such institutions are relatively well developed in
the case of biotechnology and their relevance in relation to nanotechnology is being further
stressed. The solutions provided by nanotechnology in tackling problems related to access to
safe drinking water and in combating the AIDS pandemic illustrate that nanotechnology has
to be regulated in such a way that it should hatch out of the kennels of the market. The
orthodoxy of market fundamentalism which has been thoroughly resilient could now be
challenged with new found opportunities that nanotechnology is set to offer. And for this,
analogies could be drawn and lessons could be learnt from comparable antecedents in
biotechnology, information and other emerging technologies.
It is this aspect of the regulatory regime of nanotechnology that this paper seeks to explore
and analyse. It argues that the first step in this exercise is the identification of appropriate
values and accordingly draws attention to the ethical category of beneficence as distinguished
from the much rehearsed appeals for justice. The concept of beneficence is a category treated
on a par with justice and other concepts in philosophical ethics and which rose to greater
prominence with the rise of bioethics.
In the sections below the concept of beneficence is compared and contrasted with justice and
other competing concepts. Invoking Rawlsian theory, the intersection between beneficence
and justice is highlighted. The paper defines and argues for the ‘beneficent regulation’ of
nanotechnology. It is, however, imperative that we define what is meant by nanotechnology
before embarking on a discourse on its ‘beneficent regulation’.
Defining Nanotechnology or the attempt thereof
The over-adoption of the term and the resulting semantic multiplicity is a nightmare for
standardisation and regulatory agencies whose appeal for an agreement on terminology and
nomenclature is still standing both at the national and global level.7 After more than two
7
Notable among such disambiguation exercises is the publication of the first nanotechnology terminology
standards by ASTM International (the American Society for Testing Materials) in partnership with other
international standardisation organisations in February, 2007. Other efforts at the national and international
level are underway and include those being exerted by the British Standards Institute and the International
Standards Organisation (ISO). ASTM International, 2006; Environmental Defence- DuPont Nano Risk
Framework, 2007, p.6
3
decades of active engagement and enormous investment, a great deal of the disambiguation
exercise is intact; the quest for a determination of the ‘ontological status’ of nanotechnology
is still pending. As yet there is no settled definition of nanotechnology. Nor is there the hope
of a consensual definition to come owing to the ‘fluid’ nature of the technology further
complicated by the immense attention it attracts.8
As one of the first essential steps of the disambiguation exercise, ‘killing’ the very notion of
nanotechnology itself is suggested: “Nanotechnology simply does not exist. What is real is
science, technology and engineering at the nanometre scale.”9 The term, however, seems to
have defied such assassination attempts with its pervasive currency and dazzling visibility
despite the fuzziness of the meaning it conveys. The term has made it to the statute books
despite the sustained effort to kill it especially by suggesting alternate vocabularies including
the one suggested by Drexler-zettatechnology.10
‘Killing’ the term nanotechnology and salvaging science, technology and engineering at the
nanoscale would not dispense with the onus of defining “the nanometre scale.” As discussed
below, the relevant ‘nanometre scale’ range has not secured an unqualified consensus.
Nanometre is a unit in quantum metrology: the science of measurement at the size scale of
atoms and molecules.11 While it is possible and there is absolutely nothing inexact in
measuring atoms in meters or miles, it simply is not the best way as it is inordinately
inconvenient even with the use of scientific notation. Hence, the nanometre is adopted as the
unit of measurement for the size scale of atoms and molecules.
One nanometre (abbreviated as nm) is a billionth of a metre. This is a length scale which is
hard to imagine. To help with the imagination of the nanoscale, comparisons with the more
familiar length scales are needed. Nobel laureate Sir Harold Kroto describes it by comparing
it to the human head: one nanometre is to a human head what a human head is to the planet
8
Fogelberg and Glimmel, 2003, p.42, Barben et al, 2008, p.981
9
Loveridge, 2002 (emphasis added)
The pioneer legislation is ‘The 21st Century Nanotechnology Research and Development Act of 3 December
2003. Official documents of the UN bodies, the EU and other actors consistently use the term nanotechnology.
10
11
Royal Society and Royal Academy of Engineering, 2004. p.13; Wood et al, 2007, p.43
4
Earth.12 A dollar bill is 100, 000 nanometres thick while the human hair is 80,000 nm wide.
The smallest of human cells, the red blood cell is 1000 nm wide.
While there is no disagreement as to the metrological sense of the prefix, confusion crops up
as the suffixes are added. Nanotechnology is conventionally defined as science and
technology operating at the nanoscale and that scale is confined to the range of 1-100 nm.
The US National Nanotechnology Initiative (NNI) definition added one more element, viz.,
the creation and use of novel properties and applications at the 1-100nm range. The official
NNI definition reads as follows
[Nanotechnology is] research and technology development at the atomic, molecular,
or macromolecular levels, in the length scale of approximately 1 to 100 nm range, to
provide a fundamental understanding of phenomena and materials at the nanoscale
and to create and use structures, devices, and systems that have novel properties and
functions because of their small and/or intermediate size.13
The additional criterion has a critical implication: the former criterion, the less contested
feature of nanotechnology, is demoted to a less important feature of the definition. The range
of 1-100nm is said to be ‘arbitrary’ as materials within this scale range do not necessarily
behave in the strange ways that differ them from their macro or micro-scale state.14 While in
some cases the strange behaviour of materials could be observed well beyond the 100nm
range, in other cases no such behaviour is observed within the same range, especially above
50nm.15 Therefore, the novel property rather than the scale range of 1-100nm tends to be the
central defining concept of nanotechnology.16
It is indeed the strange properties of matter at the nanoscale and the possible applications
thereof that made nanotechnology a subject of enormous interest. At the nanoscale, the
classical laws of physics governing the macroworld cease to operate and the laws of quantum
12
Uskoković, 2007; p.48; Gimzweski and Vesna, 2003
13
UNESCO, 2006, p.5
14
The Economist, 2005; p.3. The arbitrariness of the 1-100nm range can nowhere be made clearer than in the
sarcastic answer to the question -‘Why 100nm?’. An academic’s snappy impromptu answer was: “Because
President Clinton says so”. Jones, 2004, p.39
15
Id.; Also Roukes, 2001,p.43
16
The Economist, 2005; p.3
5
physics take over and the strange properties of matter unknown at the macro level begin to
dominate. At the nanoscale silver turns into a bioactive antimicrobial substance; gold melts at
a much lower temperature than it does at the micro or macroscale; copper strangely becomes
a poor conductor; aluminium behaves like chlorine; the soft carbon in the form of graphite
becomes a hundred times stronger than steel when manipulated at the nanoscale turning into a
much sought-after material with incredibly high strength-to-weight ratio. Once discarded as
pseudoscience, the old idea of ‘transmuting elements’ proffered by ancient and medieval
alchemy is being resurrected in the mantra of nanotechnology. “It is like you shrink a cat, and
keep shrinking it, and then at some point, all at once, it turns into a dog.”17 It is, thus,
understandable why the exploitation, actual or potential, real or purported, of these strange
properties has become the crucial concept in the definition of nanotechnology.
While the strange properties of matter at the nanometre scale may have been a boon for
nanotechnology promotion, it is not the exploitation of these strange properties that led to the
mobilisation of public and private resources. What was genuinely driving nanotechnology
initiatives right from the outset was the promise enshrined in the original conception of
nanotechnology that was attributable to Richard Feynman and Eric K. Drexler. Despite the
excommunication of the author of the idea, the Drexlerian concept of ‘molecular
nanotechnology’ has secured covert official imprimatur as can be gathered from the
references to it in government reports and strategic plans of the leading countries.18 This
conception, while decisively influencing the big nanotech initiatives, was replaced
subversively by the conventional conception of nanotechnology defined by the criteria
mentioned above. Hence, the bemoaning by Drexler’s Foresight Institute:
The bottom line is that 20 years on, the world has picked up strongly on one of the
main legs of the nanotech vision, working at atomic scale and precision. The other
one, autogenous systems, has been sorely neglected.19
17
National Geographic, 2006;p.103
18
Schummer notes that the US administration’s vision of ‘shaping the world atom by atom’ is based on the
teleological definition. Schummer, 2006b, p.219. See also Uskoković, 2007; p.44. Note, however, that Drexler’s
vision of ‘molecular manufacturing’ has been meticulously excised out of legislation and policy enunciations
especially in the US. For Drexler’s contribution to US nanotechnology policy and law, see the discussion in
Regis, 2004
19
See the Foresight Institute http://www.foresight.org/
6
In the Drexlerian conception of nanotechnology, emphasis is laid more on what
nanotechnology will achieve than what it is. In this approach, broader goals are included as
indispensable elements of the definition which assumes more the form of a vision than a
descriptive formulation as spelled out by Drexler:
molecular nanotechnology [which Drexler considers as the appropriate and precise
expression for the technology] … does not merely refer to the fabrication of
nanometre scale structures, but rather to a set of capabilities that will give thorough,
inexpensive control of the structure of matter based on molecule-by-molecule control
of products and by-products of molecular manufacturing.20
It is not so much the length scale or the bizarre properties of matter that interest
nanotechnology players or society at large. The obvious reason behind the premature hype,
the intense interest of industry, the desire of governments to control it and the fierce
competition to avoid the danger of missing the boat is the transformative potential of
nanotechnology. Molecular manufacturing will lead to the ‘Molecular Epoch’ where a
complete or near complete mastery over matter will be achieved and with this ‘the potential
for dramatic social change.’21
Though scripted in various official documentations across the globe, the US formulation in
terms of length scale and novel properties is not meant to serve as the last word; that it is
merely ‘a working definition’ needs to be stressed. This is exactly what the sole official
definition of ‘nanomaterials’ in the EU does. The definition contains a proviso that it is open
to change if another definition is agreed.22 This is also the position this paper subscribes to in
line with the advice Wood et al put forward: ‘Rather than seeing the issue of the field as a
matter of definition or at least as defining it once and for all, it may be more helpful to
approach it as a sociological issue.’23 Reckoning the resources consumed over the search for
clear-cut definitions, they rightly suggest a detour in the course of engaging with the
phenomenon: “strict definitions may be irrelevant as perspectives on how it is best pursued
20
Drexler, 1992, p.7
21
Wood et al, 2003, p.26
22
Lee, 2010
23
Wood et al, 2007, p.12
7
and what it can achieve become more important.”24Hence, nanotechnology is understood here
loosely as ‘an umbrella term’ for the scientific and technological activities where the
conditions in the conventional definition and the features in the molecular manufacturing
notion prevail. Accordingly, it is preferred to risk an over-inclusion with such broad
understanding than risking under-inclusion especially from the regulatory point of view.25
The Ethics of Nanotechnology: from Justice to Beneficence
Thus far, the prevailing approach in convening the ethics of nanotechnology, alias
nanoethics, is to treat it with existing and supposedly transcendental ethics. While the
daunting task of facing the blank page in writing the ethics of nanotechnology, alias
nanoethics, is helpfully avoided by the recourse to legacy ethics, the modification of what
has been written for the governance of pre-nano technologies to the needs of the governance
of nanotechnology is at best questionable. A passive exercise of transposing ethics from one
technology to the other can hardly meet the exigencies of moral progress that humanity needs
to cope with the challenges emerging technologies pose. Such an exercise will result in
massive blind spots. Surpassing extant ethics is required and mandated by the very nature of
emerging technologies coalescing around nanotechnology that are set to change the terms of
reference for the ethical inquiry. Concepts such as justice and privacy cannot continue with
the meaning they used to have.
Justice has been a preoccupation of ethics; it now needs to be refined, broadened and
deepened even more thoroughly and radically simply because its circumstances are changing
radically.
We should also aim higher to go beyond the demands of justice as the
understanding of scarcity-the raison d’être for the concept of justice ceases to be a material
circumstance with technological change. There are virtues that are superior to the virtue of
justice that nanoethics needs to engage. Benevolence is such a virtue and the goal of universal
benevolence should come within the purview of not only theoretical, explorative or
speculative ethics but also practical reality.
24
Id, p.17
25
Wood et al 2003, pp.26 and 29
8
The early engagement with questions of benefit allocation, ownership and control is among
the detours nanoethics is expected to take parting from previous ethics. Answers are sought
about who owns and controls the technology and who benefits and who stands to lose. The
questions are more acute from the perspective of non-participants- those communities who
are held to be not contributing to the development of the technology directly or indirectly.
The questions as to their fate date back to the early debates in the context of biotechnology
where, as Sheila Jasanoff points out, ‘these questions remain unasked and largely
unanswered’.26
It is argued here that, given the potential and promise of nanotechnology, nobler and superior
virtues have to be summoned for the regulation and governance of the technology. With
nanotechnology set to multiply the bounty at the disposal of humanity, the determinant
circumstances of justice cannot remain unchanged. In such an event justice as the underlying
virtue of regulatory governance will certainly come under elaborate scrutiny.
Closer
attention needs to be paid to both the enabling and ennobling aspects of nanotechnology, viz.,
the technological change and the concomitant moral progress.
The nobler virtues are called for by the nature and magnitude of the transformation that the
technology is expected to bring about. Justice as virtue even in general philosophical thinking
has been diagnosed for such serious limits that the need to supplement it with other virtues
has become apparent.27 As Nancy Fraser observes the dominant theories of justice are
chronically deficient to ‘provide an adequate understanding of justice for the capitalist
society.’28 The present paper seeks to amplify this need to supplement the virtue of justice for
purposes of the regulation of nanotechnology in what will be called here ‘beneficent
regulation’. The main purpose of the discussion is, however, the instatement of the virtue of
beneficence as a ‘regulative principle’ of human affairs in the particular area of the regulation
of nanotechnology and, hence, the idea of supplementing the virtue of justice comes only as a
secondary consideration.
Critiquing justice as the ideal for nano-regulation
26
Jasanoff, 2005, p.186
27
Exemplary works critiquing the idea of justice are Heller,1987; Sandel,1998 and MacIntyre,1985
28
Fraser, Scales of justice
9
At these originary stages of the technology and the ethics around it, it is justice that is being
pleaded by commentators on the subject.29 As was the case with previous technologies that
ended up in their own respective ‘divides’, the ‘nano-divide’ is thought to be engendered by
the disregard and violation of the demands of justice. The allocation of benefits in general has
been an issue examined under the rubric of the virtue and theory of justice with an eminent
bailiwick sculpted out of it-‘distributive justice’.
While the discourse on the regulation of nanotechnology remains deeply enamoured with the
idea of justice, it has not been free from scepticism as to the validity of the idea of justice for
the purposes of the regulation of nanotechnology:
...the social and ethical challenges associated with nanotechnology cannot be
adequately understood by considering nanotechnologies in themselves or by
considering them within the context of an idealized or theoretical society that meets
appropriate standards of justice. 30
Thus far, such scepticism seems to find expression in the interrogation of extant conceptions
of justice and through the appeal for a more radical overhauling of the same. 31
Yet, the
language of justice is insufficient to capture the entire spectrum of the opportunities that the
nano-future will offer and as such might be a drawback to the governance of the technology.
The ‘radical heterogeneity of justice discourse’, as Nancy Fraser characterises it, has kept the
concept eternally elusive. Notwithstanding the multiplicity of its conceptions and the various
epithets added to it, including the outlandish tags ‘selfish’ in ‘selfish justice’ and ‘laudable’ to
its contrary in ‘laudable injustice’, justice has rarely been thought of as a vice. But that is
what may become of it if the understanding and application of its principles are not
supplemented by nobler virtues of which benevolence is a major, probably the sole,
29
The literature at the interface of nanotechnology and justice is growing remarkably. Hunt and Mehta appeal
to justice and equity. Hunt, 2006a, p.183; Mehta and Hunt, 2006, p.280. It is the finding of the Italian National
Bioethics Committee that ‘the ethical profile of the “justice principle” in the potential benefits is certainly
strongly felt in the international discussion on the issue of “nanotechnologies”...’ National Bioethics
Committee, 2006. Recent literature includes the 2009 Issue of the journal NanoEthics that featured a number
of articles from a thematic symposium held on the issue of justice. Nissen, 2009, p. 119
30
Sandler, 2007,p. 451
31
cf the discussion of ‘distributive justice’ by Allhoff et al who complacently gloss over the issue of whether
we need something other than justice in the context of nanotechnology by stating that ‘the discussion on
distributive justice transcends any particular contexts’, Allhoff et al, 2010, p.132,
10
contender. As Michael Sandel argues it is not a ‘moral improvement’ if a community reverts
to the virtue of justice where the virtue of benevolence fares better.32 Justice turns into a vice
in situations where it is employed to lower a community’s virtues from an environment where
it is less of an issue to where it becomes a central issue. Justice is a ‘poor virtue’ as the ideal
would have been ‘a state where the need for justice was absent.’33 Echoing Hume, Michael
Sandel characterises justice as ‘a remedial virtue, whose moral advantage consists in the
repair it works on fallen conditions’.34 Rawls cannot be held as fully disagreeing with
Sandel’s view for he has his reservations to his own conception of justice where he cautions
that ‘[j]ustice is not to be confused with an all-inclusive vision of a good society; it is only
one part of any such conception.’35
The multiplicity of its conceptions and the divergent outcomes that the different theories
suggest have led some thinkers to doubt the usefulness of the idea. Disparaging it as ‘obsolete
verbal rubbish’, Marx advised against betting on the idea of distributive justice or fair
distribution on account of the possibility of an equally valid rival conception of justice
negating the purposes of a preferred conception of justice.36 Contemporary bioethics scholars
sympathise with Marx in their treatment of justice. They impute that the principle is
incapable of serving as an action-guiding principle; the injunction to ‘apply the principle of
justice’ without ranking or selecting the theory of justice is a bewildering command. Even
within a preferred theory of justice, there is a plurality of conflicting non-hierarchical duties37
As yet no one has come with an ‘algorithm that could resolve such disputes’.38
The concept of justice has been wildly open for interpretations that what may be taken as the
‘ordinary thinking’ about justice is now fraught with ‘deviant uses’ of the concept. 39 Even the
supremely influential Rawlsian theory is classified as one that ‘departs from ordinary notions
32
Sandel, 1998, pp. 32, 168
33
Wolgast, 1990, p.349. See also Sandel, 1998, p.35.
34
Sandel, 1998, p.32
35
Rawls,1999a, p. 48
36
MacIntyre, 1985, p.252; Marx invoked in Freeman, 2006, p.33
37
Gert et al, 2006, p. 111
38
Miller,1999,p.220
39
Miller,1976, pp.122-123
11
of justice’.40 It is no wonder then that whatever is said to be represented by the concept of
beneficence may well have been treated in the mantle of justice. The distinction between
‘social justice’ and ‘beneficence’ is regarded as nothing but a distinction without a
difference.41 The absence of this distinction is not regretted by philosophers who espouse the
idea that nothing important is lost by such absence.42 This argument could find no better
support than in the Augustinian doctrine that ‘[j]ustice consists in helping the wretched’.43
Others insist on preserving the distinction between beneficence, humanitarianism, or charity
from justice.44
For the purpose of elucidating the limits of justice as an ideal for the regulation of
nanotechnology, we do not need to provide a blow-by-blow account of the various versions
of theories of justice – which, anyway, is impossible for anyone to pack in a fat tome let
alone in a work of this brevity. Nor do we need to subscribe to any one particular doctrine of
justice as we are seeking to pinpoint the common ground the various conceptions of justice
share. Despite the deep disagreement and what the late Brian Barry characterised as the
‘fruitless wrangling’ over the primacy of any one particular conception, there is a baseline
presupposition that all conceptions of justice require.45 What seems a commonality between
the rival conceptions of justice, such as those of Rawlsian principles of ‘justice as fairness’
and Nozcikean ‘entitlement theory’ is their underlying assumption of the relative scarcity of
resources.46
Whether justice with its presupposition of scarcity is the proper ideal for the
regulation of nanotechnology will have to be decided taking into account the potential of
nanotechnology to bring an end to material scarcity.
40
Miller, 1974, p.388
41
Buchanan,1987, p. 575; See the entry under ‘Beneficence’ at Stanford Encyclopaedia of Philosophy
42
Buchannan, 1987, p.574-5
43
St Augustine quoted in Miller, 1976, p. 285
44
Jones,1999,p.13; Miller, 1976, p.124
45
On the incessant wrangling see Barry 1997, p.536. See also MacIntyre’s comment on this point: ‘Modern
academic philosophy turns out by and large to provide means for a more accurate and informed definition of
disagreement rather than for progress toward its resolution’. MacIntyre, 1988, p. 3
46
Jones, 1999, p. 4
12
One need not be put off by the seemingly futuristic post-scarcity society of the nano-age to
inquire into the limits of justice. The talk of material abundance is not an exercise in
extravagant theorising even for today’s society. A simple juxtaposition of the riches of the
few and the needs of the majority reveals the other reality that humanity is indeed wading
amidst plenty.47Such juxtaposition is, however, deceptive and encourages us to stay within
the confines of the justice discourse. It presents a sense of comparability of the poverty that
afflicts the vast majority to the prosperity in which the few are immersed. The rampant
poverty is rightly qualified as ‘absolute’ because any comparison to reach at a certain level of
fairness would amount to accepting that the level of poverty is endurable in fairness to those
who live in material superfluity. The worldly abundance and the poverty alongside it are far
too stark to be the subject of justice where the weighing, balancing, and overriding of
multiple variables such as deserts, needs and rights is the dominant modus operandi.48
It is not only absolute abundance that would do away with the need for the idea of justice.
‘Absolute scarcity’ is also a case where justice is rendered irrelevant and has to be
suspended.49The worldly abundance we are in is not an ‘absolute abundance’ to make justice
redundant at the moment. On the other hand, the poverty experienced in large parts of the
globe is rightly qualified as ‘absolute’. The facts of absolute poverty foreclose the application
of the idea of justice. As Thomas Nagel reckons ‘[t]he facts are so grim that justice may be a
side issue’.50 The facts mentioned are shockingly stark in their elucidation of the absolute
poverty and the wide availability of the means to alleviate such poverty. These facts did not,
however, result in dramatic reactions even as they were rehearsed over several decades.51 Far
47
Peter Singer worked out the availability of resources to meet UN Millennium Development Goals (MDGs)
and found out that the MDGs are ‘indecently, shockingly modest.’ Singer, 2006; Dr. John Sentamu, Archbishop
of York, observed on the flipside of the current financial crisis that poverty eradication goals are ‘utterly
achievable’ as this is irrefutably adduced by the availability of resources for the massive bailout of the banks.
http://news.bbc.co.uk/1/hi/uk/7634641.stm (last accessed 23/01/09)
48
‘Absolute poverty’, under which a billion people live, is defined as “a condition of life so limited by
malnutrition, illiteracy, disease, squalid surroundings, high infant mortality, and low life expectancy as to be
beneath any reasonable definition of human decency.” The definition is attributed to Robert McNamara of the
World Bank. Sterba, 2005, p. 159
49
Heller, 1987, p.181
50
Nagel, 2005, p. 118
51
In a 1997 postscript to his famous 1971 article ‘Famine, Affluence, and Morality’ Peter Singer writes that
‘the case for aid... remains as great now as it was in 1971...’ ; Singer, 1997, p.593. Another author writing in
13
from being useful in addressing absolute poverty, the idea of justice has hindered the
development of principles more amenable to the predicaments of the vast majority. As Eric
Posner and Cass Sunstein pointed out, this is especially true of the case in the ongoing
climate change debate.52
Even where the idea of justice, being a ‘remedial virtue’, leads to a duty that agents can and
will obey, it has serious limits as it counts out those communities who are supposed not to
have suffered injustice because they were not part of the act or relation that caused the
injustice. Hence, those not subjected to colonial rule or who are not descendants of slaves
will have no standing to claim justice leave alone to claim compensation from those owning
the wealth attributable to colonialism or slavery. The instance of the injustice is to determine
who will have a right to claim justice. Identifying who is entitled to a right to demand justice,
besides being extremely complex and at times impossible, leaves out some communities
without redress to which they may be entitled for merely being humans as propounded, for
example, by the notions of citizenship and solidarity. This issue is accentuated in a similar
context by Fraser’s appeal for a critical-democratic approach in the attempt to resolve the
question of the ‘who of justice’.53
The complexity of identifying who is entitled to demand justice is further confounded when
the act or relation that is claimed to have been the cause of injustice is itself contested.
Reactions from former colonial powers to the demands of justice do come in the form of
denying any wrong-doing and even seeking credit for what the colonies have achieved in
their history. It is not entirely unusual for compatriots from former colonies to sympathise
with these reactions.54 The extreme difficulty of applying the idea of justice in colonial
the same year as Singer’s redux was published, noted that ‘the scale and depth of contemporary hunger is
alarming and historically unprecedented.’ Saurin, 1997, p.113
52
Eric Posner and Cass Sunstein find it puzzling why the US is required to assist poor nations under a climate
change agreement rather than taking direct steps to provide aid. Their claim is that such a winding method of
transfer of resources is not effective and their claim extends to the attempt to invoke distributive and
corrective justice. Posner and Sunstein, 2008, p.1591. Similarly Mark Drumbl evaluating the contribution of
justice concludes that the raising of justice concerns was unsuccessful in the contexts of economic
development and environmental negotiations: raising justice concerns was ‘naive’ or ‘aspirational’. Drumbl,
2002, p.930
53
Fraser, 2009, p.42
54
Furedi,1997,p.79
14
relations foretells the ever more intractable task of applying the idea of justice in times of
socio-technological transformations or, in Fraser’s terminology, ‘abnormal times’.55
In the more proximate case of biotechnology, the application of justice should have been less
complicated given the contribution made by resource communities who stand to suffer
injustice when all proceeds from their contribution go to the developers of the biotech
product. Invoking justice, however, does not lead to desired or just results as the companies
weighing their vast R&D investments against the contribution of biological resource
communities-usually a mere access- will be justified in denying the free sharing of benefits.
If justice is to be invoked in the nanotech era, its relevance would be even more precarious.
Unlike biotechnology, nanotechnology is likely to develop without the participation of what
used to be the resource communities in biotechnology development. Nanotechnology tends to
sever the link that was established during biotechnology. By definition, nanotechnology may
not require a resource community’s contribution-it is after all the manipulation of available
atoms.
The dominant theories of justice and Rawlsian theory in particular, are also accused of being
anaemic in their inculcation of technology in their theories leaving ‘little scope for thinking
through the relationships between technoscience, human rights, and the tasks of global
justice.’56 Rawlsian theory, however, corrects this shortfall in the celebrated method of Wide
Reflective Equilibrium (WRE): ‘the correct regulative principle for a thing depends on the
nature of that thing.’57 The method allows the particular nature of nanotechnology to be taken
into account in formulating its regulative principles.
Principles of justice may not qualify as ‘the correct regulative principles’ for nanotechnology.
When nanotechnology results in a utopia of unprecedented material abundance, it will either
transform the concept of justice or totally dispense with it as per Hume’s theory:
55
Fraser, 2009, p.70
56
Baxi, 2008a, pp.119-127
57
Nagel, 2005, p.122. For the application of WRE in computer ethics and bioethics see van de Hoven, 1997 and
Ebbesen and Pedersen, 2007.
15
Encrease [sic] to a sufficient degree the benevolence of men, or the bounty of nature,
and you render justice useless, by supplying its place with much nobler virtues and
more favourable blessings.58
In the context of nanoethics, Hume’s theory finds a deserved translation:
If the most radical futuristic visions prove possible, and if we allowed them to be
realised, then new ethical issues might certainly arise. Societal transformation would
be absolutely radical if each household had its own Drexlerian manufacturing kit,
with self-replicating nanobots turning carbon and sunlight into whatever matter was
needed, including food. Such abundance would render current theories of justice
irrelevant, since they all assume a scarcity of resources.59
Nanotechnology is set to multiply the ‘bounty of nature’ by, inter alia, mimicking her and
harnessing her own laws for mastering her and by removing the scarcity that justice
presupposes as its raison d’être. Given the potential and promise of nanotechnology, it is not
too early for nobler and superior virtues to be summoned for its governance. The materiality
of nanotechnology’s claim to lead to absolute abundance by multiplying the ‘bounty of
nature’ is, however, not a given and has to be examined before justice is required to retire.
Scarcity and Justice: Engaging with Nano-utopia
A strongly positive utopian outcome of the nanotechnology revolution is an underlying
assumption for the arguments here. Utopian thinking is a long overdue corrective if the aim is
to put right what Habermas has called ‘the exhaustion of utopian energies’ which Fukuyama
hastily grabbed to announce ‘the end of history’.60 While some rule out a future of nanoutopia others have cautiously embraced it yet flinging it far into the distant future. This paper
endorses the view that the nano-revolution is upon us and will in all likelihood overwhelm us
58
As quoted in Sandel 1998, p. 32
59
Litton, 2007, 24
60
Fraser, 1997, p.2
16
with considerable surprises. Moreover, it looks like the room is shrinking for thinking about
the progress of technology otherwise than in a largely deterministic way.
While some prefer to wish away a ‘paralysing technological determinism’,61 others avoid
being associated with the concept without denying that it is in operation.62 Still others
endorse that ‘raw technological determinism’ is what is driving all technological progress.63
As shown by what is called the Control Dilemma, ‘attempting to control technology is
difficult and rarely impossible’.64 Yet, the most that can be said about technology in general
and the ‘inevitably coming, still-able-to-be-influenced, nano-future’ in particular is what
Charles Taylor has said: ‘[w]e are not indeed locked in. But there is a slope, an incline in
things that is all too easy to slide down.’65
In the particular context of nanotechnology Bill Joy recites technological determinism but
hopes for a steering of technology which may be possible with brand new thinking: In an
update to his famous Wired article, Joy states that
We can’t pick the future, but we can steer the future…. So we can design the future if
we choose what kind of things we want to have happen and not have happen, and
steer us to a lower-risk place.66
It is not only the determinism but also the imminence that needs to be addressed. Those who
toss the utopia into the unforeseeable future would also prefer to reschedule the ethics and
regulation of nanotechnology until such time that the technology is fully or substantially
realised. But this will be a fatal misjudgement. As Upendra Baxi observes this reaction to
the technological surge is a symptom of falling prey to a rather imprudent engagement with
61
McGinn, 2010, p.125; Hildebrandt, 2008, p.176;
62
Juma, 2007
63
Ceruzzi, 2005, p. 593. For a nano-specific analysis of technological determinism see Mody, 2004, pp. 99-128.
64
The dilemma refers to the difficulty of control at the start of the technology as little is knowable at this stage
and the difficulty of control after the technology has gone beyond the point where reversing or stopping its
advance is costly and slow. Collingridge as cited in Sollie, 2007, p.297
65
Quoted in Spinello, 2006, p.9; Mody, 2004
66
Joy, Bill, 2010, ‘What I am worried about, what I am excited about’ interview available at
http://www.ted.com/index.php/talks/bill_joy_muses_on_what_s_next.html
17
the breathtaking rate of technological development.67 What is more, the failure to appreciate
the rate of advance of the technology and its consequences is prone to interpretation that no
engagement may be necessary as the markets will sort it out as usual.68 The voices are
growing louder calling for a mitigation of these formidable distractions and for a resolution of
the basic issues to begin now.69
The utopia of material abundance is more plausible in its nanotechnology context than in the
context of all other technologies. Advances in nanotechnology are addressing the problem of
scarcity and redefining the problematic itself by offering new perspectives on how scarcity
should be understood. The disparity between the scale we are familiar with and the scale on
which nanotechnology operates offers a compelling perspective on the plausibility of the
promise of material abundance. Material abundance in the sense of having more of
everything is unsustainable and hence undesirable. But that is so because the measure of
abundance is perceived in familiar human scales. With the promise of nanotechnology to
make artefacts at the nanoscale approaching its realisation, material abundance is possible,
sustainable, and desirable.70 Our current ethics, dependent as it is on human scale ontology,
needs to be corrected in order to avoid a mismatch with the new nanoscale state of affairs that
it is trying to address.71
The principle of justice as understood in the impoverished
macroscale ontology has to be rethought in the context of the nanoscale reality.
Justice might still be invoked in a post-scarcity society. However, there would arise the need
for holders of resources to come up with reasons other than scarcity if they intend to withhold
benefits to exclude those who need them. A version of justice in the vein of Nozcikean
entitlement thesis might be proposed as a reason for withholding resources even in times of
perfect plenty. Indeed, this best explains the withholding of otherwise abundant resources that
could have benefited billions by combating needless mortalities and preventable maladies. In
67
Baxi, 2008b, p.237
68
Beck, 2005, p.134
69
Allhoff and Lin argue that we should stave off the charge that a discussion of the ethical dimensions of
advanced nanotechnology is inappropriate and premature. The possible scenarios warrant an early debate
despite the remote appearance of the technological disruptions. Allhoff and Lin, 2008, p. xxx
70
Nordmann, 2004, p.53
71
At the empirical level, there lies a massive challenge in understanding the nanoscale and this challenge will
impact the analytical engagement and the abstraction that ethical inquiry involves. Batt, 2008, pp.121-122
18
times of perfect plenty, the entitlement claim makes no sense. It would be hard to imagine
claiming entitlement where it is not contested so no cause of action could materialise; or
where it is fulfilled even before it is claimed, or where it cannot be asserted against anybody
as nobody lays claim to it in the first place due to the plenty that abounds.
While talk of a post-scarcity society may seem unworldly at the moment, it is not without
service to the sober tasks of analysing and explaining the worldly reality. Indeed it is utopian
theorising that sets the scene where the unvitiated ideal of ‘what ought to be’ is discussed
without being refracted by the reality of the ‘what is’. It is this ‘capacity of utopia to break
through the thickness of reality’ that makes it a powerful discursive tool.72 Utopian thinking
helps in envisioning and even forecasting human behaviour under the best circumstances. As
Thomas More himself would say, people in utopia would exhibit perfect conduct.73
While More was less hopeful about the latter purpose of utopia, he was emphatic on
implementing it as ‘a critical tool’, ‘a vehicle for irony’ and ‘an alternative to reality.’ 74 Hans
Jonas echoes this view of utopia which he holds as ‘a compass in the labyrinth of political
practice.’75This is particularly true of nanotechnology and that is what has made public
engagement an immediate exigency and also that is what explains the public’s reaction to
nanotechnology thus far.76
Examining the nature of the technology would enable us to identify the causes of injustice
and locate the junctures where injustice occurs. The instance of injustice may occur mostly
during the allocation of benefits but by no means restricted to that stage. The issue of justice
arises even before the actual benefits are realised. Injustice does take place in the process that
leads to the benefits and even where no benefits materialise.77 Thus Joachim Schummer’s
72
Taylor, 1986, p.309
73
Rachels, 1997, p.203; Allhoff and Lin endorse this idea as an occasion of a ‘thought experiment’ that we
should be taking advantage of in the discourse of nanoethics to test our moral principles. Allhoff and Lin ,
2008, p. xxxi
74
Taylor, 1986, p.309
75
Jonas, 1984, p.24
76
Kearnes and Wynne, 2007, p.131
77
It is issues of inclusion and recognition that matter more fundamentally than the sharing of particular
products or services. See Fraser’s thesis of justice as recognition transcending the distributive justice thematic,
in Fraser, 2003; In the context of biotechnology, the theme of recognition and inclusion is reflected in the
19
appeal for redistributive justice in the disbursement of research funds reminds us of the need
to tackle justice issues early on and at every stage of nanotechnology’s advance. 78 Yet, the
language of justice remains insufficient to capture the entire spectrum of the opportunities
that the nano-future will offer. While the ‘bounty of nature’ can be expanded by deploying
nanotechnology, the ‘benevolence of men’ has yet to be cultivated. Beneficent regulation is
an exercise in this direction.
Justice as the interim ethic
The day when scarcity, artificial or otherwise, ceases to be the norm may be closer than many
would think. Information technology has made it profusely evident that we are living in an
era of ‘forced artificial scarcity’ and frantically struggling to maintain such scarcity. 79 As
information technology has made the book a dematerialised and infinitely ubiquitous product
(assuming the beneficent author), so will nanotechnology make everything absolutely
abundant. With the props provided by information technology, practical nanotechnology
applications –the green shoots of a post-scarcity economy are already over-ground.
Nanotechnology is poised to enable humanity achieve the end of scarcity-‘an idea political
systems have failed to fulfil’.80
At any rate, until humanity reaches a stage of perfect plenty, it appears justice would continue
as an indispensable concept called upon to address issues arising from the deployment of
technology. However, for regulating a technology that promises unprecedented abundance,
the concept will have to be thoroughly enhanced and complemented by the concept of
benevolence. As a prelude to the broader duty of benevolence, the appeal to an enhanced
concept of justice that espouses aspects of the notion of benevolence will be of critical
service in the interim period before the realisation of the end of scarcity. Such is the case, for
benefit-sharing discourse where benefit-sharing is not necessarily contingent upon results from research. See
Simm, 2007
78
Cited in Nordmann, 2007a, p. 233
79
See a prying observation American writer David Wong about the widespread use of ‘forced artificial scarcity’
in what is otherwise a post-scarcity Star-Trek style of utopia already here. Wong, 2010
80
Koepsell, 2009, p. 166. See also the examples Koepsell discusses about current products and processes of
manufacturing that could well be taken as the green shoots of a possible post-scarcity economy.
20
example, when technology disrupts, as it always does, livelihoods that depend on previous
technology or on a relationship created by the previous technology. A reckless severance of
an existing relation without any safety net solutions for the aftermath of the severance would
raise issues of justice.
This would particularly hold true for the much wider context of international trade in
commodities. The livelihoods of those commodity exporting nations already beaten down by
low prices and rich nation subsidies are yet to face a final blow in the elimination of all
demand. Nanotechnology products are set to replace imported commodities to the extent of
totally undermining international trade. Michael Mehta terms this development as ‘nanomercantilism’. Signs of this tendency are not rare. From the resuscitation of the ‘Always Buy
American’ campaign in the US to President Sarkozy’s declaration that protectionism is no
longer a ‘taboo’, the spectre of neo-mercantilism looms large and may be the midwife to
‘nano-mercantilism’.81
The rich nations are likely to succumb to the temptation of neo-mercantilism when
nanotechnology enables the substitution of imported items possible. It will be an issue of
justice if livelihoods dependent on an exchange relationship are put to an end by a party to
the relationship who would not care to do anything about the effects of its action. The
negative externality arising from this unilateral go-alone is a concern that those nanoempowered nations can’t ignore.
Justice in such circumstances may not remain merely a staple of abstract morality or
international politics. It could develop into a justiciable matter. The Indian judiciary was
grappling with the idea of justice following the disruptive effects of technology. The
introduction of trawlers in the fishing industry put on hold the livelihoods of millions of
traditional fishermen. The Indian Supreme Court decided to allow the operation of both
fishing methods having considered the need to protect what Justice Reddy described as the
traditional fishermen’s ‘slender means of livelihood’.82
81
‘Sarkozy says protectionism should not be taboo’ Ben Hall, Financial Times 13 Nov. 2007; ‘The return of
economic nationalism’, The Economist, 2009, p.11; Ben Hall, ‘Sarkozy says protectionism should not be taboo’
Ben Hall, Financial Times 13 Nov. 2007
82
Visvanathan and Parmar,2005, p.352
21
This judicial encounter with issues linking technology and justice exemplifies the need to
complement the idea of justice with moral theories on other virtues. The Indian case could as
well be considered as inspired by ‘benevolent neo-Luddism’ in allowing old technology to
survive and thrive along with new technology with the main purpose of benefitting those
adversely affected by the advent of the new technology. A more beneficial measure would
have been the sharing of the efficient technology which should itself feature as an issue of
justice on its own or in its enhanced conception supplemented by the virtue of benevolence.
For the idea of justice to accommodate the issue of the sharing of technology and to serve as
the interim ethic for the period preceding the end of scarcity in all its forms, it will have to be
reinforced by the superior ethic of beneficence/benevolence.
Beneficence - the virtue for nano-regulation
The virtues of justice and beneficence are widely identified as overriding principles in moral
philosophy. Proponents hold their preferred virtue as having primacy over the other while
others hold them on parity. We thus find Rawls arguing for the primacy of justice as ‘the first
virtue of social institutions’ while O’Neill argues that beneficence is not only the first but ‘the
whole of virtue’-a comment that is not extended to justice.83 An example of the middle
ground is William Frankena’s position that holds beneficence and justice to be the two
cardinal principles.84
The comparison of the notions of justice and benevolence is captured in various ways and has
parallels to the ethic on love- a theme not estranged to the nanoethics debate.85 As love
presupposes justice, so does benevolence. Benevolence, like love, cannot be said to require
less than justice even where it transcends it.86 Adam Smith, the man who implores us to stop
trying to fathom out benevolence from the butcher, the baker or generally from the market,
nonetheless places benevolence on a higher rank than justice. His analysis of the relation
between justice and benevolence expounds the supremacy of benevolence over justice.
83
Rawls as cited in Sandel ,1998, p.15; O’Neill, 1986, p.142; See text accompanying note 35 above
84
Frankena, 1987, p.6; cf Sandel arguing against the primacy of justice. Sandel, 1998, p.1
85
‘Love of humankind’ is the contending policy alternative competing with parochial national interests.
Bostrom, 2007, p.138
86
Preston, 1993, p.98
22
Justice is the emblem of ‘a free society’, Smith posited, while benevolence is required for a
society to qualify as ‘a good society’.87 Using the metaphor of an edifice, he analogises the
foundation as a requirement of justice, and the ornaments embellishing the building as those
required by benevolence. Any ornamental work on an edifice presupposes and takes it as
settled that the basic structures are in place. Likewise the requirement of benevolence
presupposes that the requirements of justice are fulfilled.
The relation of justice and benevolence as described by Smith’s metaphor is said to be an
understatement of the place of benevolence in morality as well as in its manifestation as a
social fact. Tony Prosser evokes Durkheim on this point:
[A]ltruism is not designed to become... a pleasant ornament of our social life, but one
that will always be its fundamental basis. How indeed could we ever do without it?
Men cannot live together without agreeing, and consequently without making mutual
sacrifices, joining themselves to one another in a strong and enduring fashion. Every
society is a moral society.88
Whether we remain a moral society à la Durkheim or we need a ‘good society’ à la Smith is
a leitmotif of the nanoethics discourse engaging the justice-benevolence issue head-on. The
question what kind of society we want to be is the very question nanotechnology is bringing
to the foreground ever more intensely. While the question is not new to nanotechnology and
has been raised in relation to all technologies, its discussion in relation to nanotechnology
takes a critical turn. As Nigel Cameron highlights, the discussion ‘takes on a symbolic role,
as a surrogate for our entire social conversation about what we do with the work of our hands
and brains, and who we are.’89
The ‘essence of morality’, not one but ‘the whole of virtue’, the one and only moral virtue,
the ‘cardinal virtue’ are all the credentials that the virtue of beneficence boasts
90
For David
Hume, benevolence is the central principle of moral theory; for utilitarians it is ‘close to the
essence of morality’ and for Mill in particular the principle of beneficence that finds
87
Campbell, 1993, p.353
88
Durkheim quoted in Prosser, 2006, p. 380
89
90
Cameron, 2007a, p.288
Frankena, 1987, p.6
23
normative expression in the principle of utility is ‘the one and only supreme principle of
ethics’.91 For Kant, beneficence is one of the principles of duty with universal validity while,
for Adam Smith, it is ‘the highest virtue’.92Nevertheless, despite these lofty credentials,
beneficence and the theory thereof is not a well-developed field.
Unlike justice, benevolence is a simpler and ‘a much less sophisticated concept’. 93 It refers to
doing good or as Frankena verbalises it ‘do-gooding’.94 While this verb catches the gist of the
term, what comes after the verb is critical to the definition-‘doing good to others.’
Benevolence is referred to as ‘the study of the good of others’ and is distinguished from
justice due to its exclusive focus on ‘others’.95 Unlike benevolence, justice is about ‘all’ and
includes the self when comparing rights. In the Humean conception of justice, the self is
critical as justice rests on ‘the sure foundation of self-love’.96 Benevolence, on the other hand,
is ‘by its nature, an unbalanced virtue’.97 It excludes the self not only because it tends to
disregard the self by demanding a selfless act, viz., sacrifice, to benefit others, but also
because benevolence to oneself is captured by another notion-that of ‘moral perfection’
according to Kant.98
‘Do-gooding’ is hardly a term that can do without an expanded description. An expanded
description of doing good denominates it in the categories of care and concern that an agent
extends to the sufferings and misfortunes of others, and the promoting of their well-being and
welfare.99 Kantian analysis of the concept of beneficence, on the other hand, employs another
category –‘ends’ and aims at guarding against unwarranted paternalism by specifying ‘others’
91
See the entry under ‘Beneficence’ at Stanford Encyclopaedia of Philosophy
92
Id; Adam Smith is invoked in Lal, 2003, p.51
93
Livnat, 2003, p.507
94
Frankena, 1987, p. 14
95
Frankena, 1987, p.5 and Livnat, 2003, pp.507–515,
96
Miller, 1976, p.162; Note however, that there are conceptions of justice where the self is disregarded. Uyl,
1993, p 206 and Miller, 1976, p.285
97
Livnat, 2003, p.513
98
Frankena, 1987, p. 5; Livnat, 2003, p. 508
99
Livnat, 2004, p.304
24
as those ‘who are at least partly agents and who have their own ends.’100 The duty of
beneficence is likewise defined as ‘a duty to promote and share others’ ends without taking
them over’.101 The anti-paternalistic nature of beneficence needs to be emphasised since the
revulsion toward charity by recipients is engendered by the unequal relation that charity
ordains by endowing the benefactor with the discretion on whether to take action or not and
to choose what kind of action to take.102The argument to supplant beneficence with justice
and relegate beneficence to a category devoid of obligations is instigated partly from the
failure to take into account the ‘ends’ component of beneficence in Kantian interpretation.
Kantian analysis also defines the scope of the virtue and principle of beneficence comparing
it to competing terms used in moral philosophy. Charity and humanity are among the
commonest terms contending for the same meaning as beneficence. Beneficence in the
Kantian tradition is broader than charity or humanity in that it enjoins meeting ends even
beyond ‘agency-threatening needs’ or just basic well-being as beneficence according to Kant
‘consists in making another’s well-being and happiness my end.’103 It is not only ‘another’s
well being’ but also another’s ‘happiness’ that is the object here. While charity or humanitybased actions are certainly beneficent actions as they essentially relate to another’s well
being, not all beneficent actions- such as those aimed at making someone happy even
happier- are based on humanity or charity.
104
It is in this broader sense that beneficence is to
serve as the ideal virtue for the regulation of nanotechnology termed here as ‘beneficent
regulation’.
A Peek at ‘Beneficent Regulation’
The principle of beneficence is one of the ethical values that the regulation of nanotechnology
is expected to enforce.105 Given risk management and market-failure management as the
100
O’Neill, 1989, p.116
101
Id
102
Drumbl, 2002,p.897
103
O’Neill, 1989 , pp.233, 115
104
Barry, 1997, p.525
105
Commission of the European Communities, 2004, para. 3.5.1.
25
dominant objects of regulation, the compatibility of the principle of beneficence with the
objectives of regulation is a question that naturally follows.106 Current regulation thinking
and practice is less concerned with benefit management. The regulation of benefit is left to
the market and if there is any regulation of benefit it comes as an afterthought to rectify
market-failure.
The compatibility of the objectives of regulation with the virtue of beneficence understood as
benefitting others in a largely nonreciprocal and non-market based allocation of benefits is an
issue that calls for some attention. As Prosser maintains, an objective of this kind has been an
objective of regulation of no less importance than other dominant objectives.107 However, the
principal objective of regulation with unchallenged dominance is the rationale of correcting
market failure. The market failure approach is better identified by its extolling of the
superiority of the instrumentality of the market than by the efficacy of its own corrective
interventions. Prosser argues that ‘if there is no market failure, this in itself provides the
ground for preferring a market-based allocation’.108 The market failure approach considers
regulation always as ‘second best’.109 The market failure approach with its prescription of the
economic rationale of maximising wealth has attained the status of a ‘meta-regulation’ setting
the standard for all regulation.110 Furthermore it has been globalised through the regimes put
in place by WTO and the international financial institutions.
The veneration of the market expressed through minimal regulatory intervention has trumped
other values that regulation was supposed to promote. The most conspicuous and callous
trammel was and is over human rights. The WTO, World Bank and IMF systems virtually
banished human rights declaring them to be not within their mandate while at the same time
overriding them if they find them inconsistent with their special missions. It is a paradox that
these institutions were able to rely on the human rights conventions to override human rights
norms. An IMF official cited Art 24 of the International Covenant on Economic and Social
and Cultural Rights, a provision on the interpretation of the Covenant, as erecting a wall
106
Baldwin and Cave,1999, p.9
107
Id, p. 82
108
Prosser, 2006, p. 366
109
Id
110
Bronwen, 2003, p.39
26
between human rights obligations and IMF’s obligations.111 The official was categorical that
human rights obligations are outside the mandate of the IMF. It should have been no surprise
when Hillary Clinton, in her comment on human rights in China, firmed up the stance taken
on the primacy of economic interests over human rights. 112 Social justice and social welfare
ideals and fundamental rights would have to give way to the rules of the market, alias, and
‘economic survival’ in the words of Hillary Clinton.
The logic of market fundamentalism relies on the instrumental rationality taken to the
extreme to the extent of confusing ends and means. The market outwardly acknowledged as a
means to an end has in reality turned out to be an end unto itself. This is a feature of the
process that Langdon Winner named as the process of ‘reverse adaptation’- the process
whereby means and ends have been confused to the detriment of ends being relegated to what
the means can provide.
113
The process unfolded as market orthodoxy took a firm grip of
regulatory policymaking. Reasserting beneficence as a regulatory objective would involve a
reversal of the process of ‘reverse adaptation’ The ends as directive targets need to be
reinstated to their true status as ends- the status which they had before being compromised by
limited-capacity means. The opportunity to think of ends right away without, say, the
intermediary of market forces, is widened with the increased capacity that the progress of
resource enhancing technology offers.114
Prosser maintains that there is the need to bring back the neglected values of social justice
and social solidarity.115 He argues that objectives other than the market failure correction
have always been rationales for regulation and would have to be revitalised. Such
revitalisation should be part of the package of the entire scheme of the expansion of
regulation that has so far been more visible in its inclusion of non-state actors as regulators.
Captured as the ‘governance turn’ and the ‘extended concept of regulation’ in the regulation
discourse, the expansion of the notion of regulation is a highlight of current regulation
111
Leader, 2004, p.59
112
‘Hillary Clinton: Chinese Human Rights secondary to economic survival’, The Daily Telegraph , 20 Feb 2009
http://www.telegraph.co.uk/news/worldnews/asia/china/4735087/Hillary-Clinton-Chinese-human-rightssecondary-to-economic-survival.html (last accessed 07/09/2010)
113
The phrase ‘reverse adaptation’ is by political philosopher Langdon Winner cited in Spinello, 2006, p.8
114
Benkler speaks of social sharing outperforming markets, Benkler, 2004, p.329
115
Prosser, 2010a, p.1
27
scholarship.116 The broadening of the definition of regulation, as pointed out by Prosser, has
merits not only in catering for the pervasiveness of regulation but also ‘in opening up the
plurality of different regulatory objectives’.117 Beneficence as regulatory objective in the
regulation of nanotechnology is proposed here in line with this expansion of the notion of
regulation.
What then is ‘beneficent regulation’? The term is used here to refer to the regulatory regime
that has beneficence as its primary overarching objective. Thus, the beneficent regulation of
nanotechnology can be defined as the regulation of nanotechnology endeavours for securing
its benefits for ‘others’ where ‘others’ stands for the residuary group when those who are
developing the technology are taken out. The reference to ‘nanotechnology endeavours’ is a
deliberately wide reference inclusive of all nanotechnology related activities and practices.
‘Endeavour’ is defined as ‘an exertion of power towards some object’118 and what beneficent
regulation purports to do is directing the exertion of power towards achieving advances in
nanotechnology towards the good of others. While nanotechnology policy and the scholarly
work thereon have not lost sight of the need for beneficence in regulation, such work has not
been clear on its relation with justice and especially on the primacy of one over the other.
The proposition for’ beneficent regulation’ is not an appeal to personal morality to take over
a public function like regulation. Nor is it confined to morality alone. It rather harks back to
the broader issue of the ethics-law-regulation nexus. Far from being matters of private
morality, moral commitments of a community are not left to ‘graze at the margins of the
regulatory process.’119 The nature of the duty of beneficence and the new place virtue ethics
has found in institutional settings among state and non-state actors as well as in supra-state
milieus should dispel any reservations as to whether beneficence is a matter of mere morality.
Beneficence has certainly garnered the moral commitments required for its crystallisation
116
Black, 2008, p. 141; Gammel et al, 2008; Prosser, 2010a, p.4
117
Prosser, 2006, p.370
118
Kirkpatrick, 1983, p.413
119
Beyleveld and Brownsword, 2006, pp. 166-7
28
into a regulatory objective. The project to elevate it to a full-fledged matter of law is well
underway as part of ‘the integrative dynamic towards the moralisation of the law’.120
Society needs to capitalise on the current emphasis on the revival of morality following the
financial market crisis. In ‘command and control’ regulation, regulatees may nevertheless
carry out their obligations while deep down they wish to avoid them leading to an unstable
society as Rawls observed.121 The credit crisis has galvanised approaches that de-emphasise a
modus vivendi approach in regulatory engagement. Instead of expecting actors to act in a
required certain way or out of fear of the stick that failure to do so entails as in ‘command
and control’ regulation, there are now demands that regulatees commit to pre/proto-legal
moral principles. It has now become familiar to hear public statements enjoining bankers and
other actors that they should not wait for legislation to act, that their future business should be
based on the ‘social benefit’ of their products and not merely on their commercial
consideration. 122
A genuine performance of a duty takes place when it is done in a way that is more than a
matter of mere compliance with rules and when it is ‘internalised into social behaviour’.123
The ‘governance turn’ in regulatory engagement in adopting directions away from legal
‘command and control’ regulation is a recognition that regulatory objectives are best
achieved by engaging the regulatees’ morality.124
The choice of regulatory objectives for nanotechnology governance will have to take into
account the opportunity the technology offers. A beneficent regulation of nanotechnology
120
Dupuy, 2007, p. 34
121
Rawls, 1999b, p.589
122
‘Obama takes out the bully pulpit’ The Washington Post, http://www.washingtonpost.com/wpdyn/content/article/2009/10/09/AR2009100904414_2.html (last accessed 10/10/09); Text of Obama’s Wall
Street Speech’, The Wall Street Journal, September 14, 2009, available at
http://blogs.wsj.com/washwire/2009/09/14/text-of-obamas-wall-street-speech/tab/print/ (last accessed
12/10/09) ; ‘Brown says markets ‘need morals’’, http://news.bbc.co.uk/1/hi/business/8281004.stm (last
accessed 10/11/09); ‘FSA Argues for ‘Radical Change’, http://news.bbc.co.uk/1/hi/business/8270340.stm (last
accessed 10/11/09)
123
Ogus, 2009, p.344
124
Brownsword, 2008, p. 264
29
would compel a reorientation of the trend technology has been following and is made to
follow. Nanotechnology is at the crossroads in the choice of various paths technological
innovation took or is taking. Re-aligning it with the demands of human welfare is what the
regulation of nanotechnology should afford. Beneficent regulation-regulation underwritten by
the principle and virtue of beneficence- is what is needed to keep the technology from being
vitiated by inferior motives that do not prioritise human flourishing.
Conclusion
The argument for the ‘beneficent regulation of nanotechnology’ is an exercise in the critique
of time-honoured orthodoxies and their supposed baseline assumptions. Justice and its
prerequisite circumstance, viz., scarcity, are held up to scrutiny and are found wanting when
placed against the backdrop of the promises, opportunities and challenges of nanotechnology.
Scarcity animates the marketplace, attracts regulation, and vitalises justice. While we are
living in an age of ‘forced artificial scarcity’, it is uncertain how long such a system can hold.
What is certain is the need to change it and nanotechnology is set to bring about such a
change.
Even the staunchest skeptic may not question the realistic potential of
nanotechnology to lead to such a state of abundance. Are conceptions of justice framed with
such a state in mind? The answer is a resounding ‘no’. It thus follows that justice is not the
appropriate regulatory virtue for nanotechnology regulation.
The contemporary prevalence of ‘forced artificial scarcity’ proves that Hume is right in
coupling abundance and beneficence as the cumulative requirement to render justice
redundant and making justice redundant is a utopia that should be embraced. The increase in
the level of abundance by itself is not a solution. The increase in ‘the beneficence of men’ is
the mission that is pending its accomplishment and beneficent regulation is a step in this
direction. Traces of incipient systems of beneficent regulation can be discerned in the various
governance regimes already in place ranging from the governance of global commons to
overseas development, from the tackling of climate change to the containing of the financial
market crisis. The complete translation of the idea of beneficence into an institution of
regulatory governance should begin in earnest and that is done by interrogating the
entrenched orthodoxies about scarcity, justice, market fundamentalism, technological
determinism and allied concepts and social practices.
30
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