3.1 - The Proposal

Vedder and Klaming propose that transcranial magnetic stimulation (TMS) might be used to enhance the memory and recall of eyewitnesses to alleged crimes (or other legally relevant acts). Enhancement of eyewitness recollection would certainly count as an epistemic enhancement. Since memory is an imperfect window into the past, an accurate memory could assist in providing knowledge of past events. This, they argue, would serve the common good since knowledge of the past is essential to the deliberation and decision-making of most legal tribunals.

The proposal to use TMS to enhance eyewitness recollection is admittedly speculative since research on the enhancing effect of TMS is largely in its infancy. But the authors do point to a variety of studies with tantalising results.¹⁰ These include studies suggesting that TMS can be used to disrupt cognitive processes (such as semantic labelling) that increase the incidence of false memories. If this is correct, there may be good grounds for thinking TMS could improve the accuracy of eyewitness memory but it remains to be seen whether this result is robust.

In any event, TMS is just one technology that could lead to epistemic enhancement. Others include the milder form of non-invasive brain stimulation (transcranial direct current stimulation TDCS), which has been found to improve a variety of cognitive processes;¹¹ the invasive form of brain stimulation (deep brain stimulation DBS), which has potential as both a cognitive and emotional enhancer;¹²

¹⁰ Vedder and Klaming (n 3), pp 24-25. ¹¹ Cohen Kadosh, R. et al “The Neuroethics of Non-Invasive Brain Stimulation (2012) 22 Current Biology R108-R111, reviews some of the literature on TDCS. ¹² Primarily in the treatment of depression. There are many studies looking at this. A recent example is Holtzheimer, P. et al “Subcallosal Cingulate Deep Brain Stimulation for Treatment Resistant Unipolar

and the more traditional chemical enhancers such as methyphenidate (Ritalin) and modafinil, which have been found to improve concentration and alertness (among other things).¹³ Epistemic enhancement is a complex process and anything that can improve the cognitive and moral capacities alluded to earlier has the potential to act as an epistemic enhancer. So although Vedder and Klaming’s test case is TMS, it is important not to exclude the possibility that these other interventions could be justified along similar lines. Furthermore, one should not think that eyewitnesses are the only possible targets of epistemic enhancement. They are merely one among many. Indeed, when I present my own argument in section 4, I will suggest that other participants in the legal system, including judges and jurors, could be potential candidates for epistemic enhancement.

3.2 - The Argument

The argument that Vedder and Klaming use to support the proposal is rather opaque. Using a hypothetical example of a fatal hiking accident (person falling off a precipice), the authors suggest that TMS-based enhancement of eyewitnesses could help in confirming or denying the hypothesis that the person was deliberately pushed. The hypothetical is fleshed out in more detail than is possible to provide here, but the basic conclusion is that in this kind of scenario, memory enhancement could assist in confirming or denying legally relevant hypotheses. But to say that is not to say that memory enhancement would be for the common good. Additional assumptions and premises are needed for that, and Vedder and Klaming do not provide them.

Fortunately, one of their critics (Hauskeller) does.¹⁴ He fleshes out the argument in the following manner (I have made one minor modification to Hauskeller’s reconstruction in order to avoid compressing one of the key inferences into the conclusion):¹⁵

and Bipolar Depression (2012) 69(2) Archives of General Psychiatry 150-158, which was a placebo controlled trial that included a two-year follow-up on efficacy. ¹³ See Repantis, D. et al “Modafinil and Methylphenidate for Neuroenhancement in Healthy Individuals

- A Systematic Review” (2010) 62(3) Pharmacological Research 186-206, for a review of the evidence on both substances. ¹⁴ Hauskeller, M. “Human Enhancement and the Common Good” (2010) 1(3) AJOB Neuroscience 37-39 ¹⁵ Hauskeller, ibid, p. 38. The change I have made is to divide Hauskeller’s conclusion into a principle/premise and a conclusion. I believe this clarifies an additional assumption that underlies the argument.

• (1)Eyewitness testimony “plays an important role in the apprehension, prosecution and adjudication of criminals”¹⁶ because the decisions made by law enforcement officials rely heavily on it.


• (2)Relying on eyewitness testimony can only be justified if it can be trusted, i.e. if there is sufficient reason to believe that it is accurate.


• (3)The accuracy of an eyewitness’s testimony depends on the accuracy of their memory, which, however, is notoriously malleable and hence unreliable.


• (4)Therefore, any means of improving the accuracy of memory is desirable with respect to the purpose of apprehending, prosecuting and adjudicating criminals.


• (5)It is in everybody’s interest (except perhaps the criminal’s) that criminals are found out and get convicted, and that innocents are not.


• (6)Therefore, it is beneficial for all of us (except perhaps criminals) for eyewitness memory to be improved (from 4 and 5).

There are a variety of weaknesses in this argument, but I believe it fairly captures the kind of argument that Vedder and Klaming wish to make. The weaknesses shall be discussed in a moment. Before that, however, it is worth briefly noting some of the general features of the argument, and some of the limitations that Vedder and Klaming themselves place upon it.

First, it is worth noting that the argument is neither as specific nor as general as it could be. On the first score, added to this argument might be the specific claim that TMS has the relevant memory-enhancing effect, but that more specific claim is neither essential to Vedder and Klaming’s project nor relevant to my concerns in this article. My concern is with the overall case for epistemic enhancement, and the contribution that case makes to the enhancement project. Specific claims about specific technologies can come later. On the second score, a more general argument about the desirability of all sorts of epistemic enhancements, and not just eyewitness memory, would be more in keeping with my concerns here. Nevertheless, the slightly narrower focus on eyewitness

¹⁶ The quote is from Vedder and Klaming (n 3), p. 22

memory, which is the core of Vedder and Klaming’s argument, is an instructive case and I shall stick with it for the time being.

Second, it should be noted that, in one respect, Vedder and Klaming’s argument is not particularly novel. The suggestion that biomedical enhancement might benefit everyone is not unusual. As others have pointed out,¹⁷ enhancement is not a positional good. That is to say, it is not necessarily something whose value depends on other people not having it. A cognitively enhanced person could create innovations and technological fixes that are beneficial to everyone, even if they are the primary recipients of the benefits. As the saying goes: a rising tide lifts all boats.

Where Vedder and Klaming add some novelty is in expressly directing their argument at an end they feel is in the common interest — viz. the apprehension and prosecution of the guilty and the exculpation of the innocent — and pointing out how focusing the argument in this manner avoids some classic pitfalls in the enhancement debate. The first such pitfall is the treatment-enhancement distinction. As they argue, that distinction is really only relevant with respect to the effect of the intervention on the individual, not on the common good. An intervention may simply restore an individual to normal capacity and still be an intervention for the common good. So the relevance of the treatment-enhancement distinction simply falls away in this kind of argument. Furthermore, by focusing on the common good, some of the typical objections to enhancement — those that highlight its self-serving and self-regarding nature — are sidestepped.

Despite these advantages, the argument is limited in a number of ways. As the authors themselves note, the proposal only goes through if (a) the enhancing technology is actually proven to have the desired effect; (b) its side effects (in terms of damage to personal welfare) are minor or non-existent; and (c) concerns about its potential to harm rights to privacy and autonomy can be addressed. The first of these is the most difficult to assess given the relative recency of the technology, but for sake of argument we shall assume the technologies can improve memory (or other epistemically relevant faculties) in the desired manner. As regard the second, Vedder and Klaming discuss the side effects of TMS in their article, noting that they are relatively minor based on what we

¹⁷ For example, see Buchanan, Beyond Humanity (n 1), chapter 2 which discusses problems with the framing assumption of assuming that enhancement is primarily a personal good. See also Harris, J. Enhancing Evolution (n 5), pp. 28-30; and Bostrom and Sandberg (n 7), pp. 328-329.

now know but that obviously caution is needed. On the final issue, they propose that a system of informed consent could minimise the privacy and autonomy undermining features of this technology. This is something that their critics have targeted and it is to those critics that we now turn.

3.3 - The Criticisms

Criticisms of the argument settle around a common theme, one that Vedder and Klaming partly preempt. This theme has to do with the nature of the common good and the clash between it and other personal goods.

The first problem for Vedder and Klaming is that they underspecify their conception of the common good. The common good is a concept that has been subjected to much theorisation over the years.¹⁸ Two major views predominate. The first is that the common good is a sui generis or distinctive property of the state or polis. In other words, that there is a concept of good that applies to the corporate body known as the state that is distinct from the concept of good that applies to each citizen within the state. According to the second view, the common good is an aggregative sum of what is good for each individual citizen. In other words, there is no distinct concept of the common good which is over and above what is good for a person, there is just the aggregation of each individual’s good. Charitably, it would seem like Vedder and Klaming are appealing to the second concept since they seem to talk about what is in everybody’s interest, not what is in the interest of the state or the polis.

But even if the aggregative concept is what they have in mind, there are problems with its interpretation and application in their argument. This becomes clear if we consider the crucial inference from (4) and (5) to (6) in Hauskeller’s reconstruction of their argument. To recap, the inference was the following:

(4) Therefore, any means of improving the accuracy of memory is desirable with respect to the purpose of apprehending, prosecuting and adjudicating criminals.

¹⁸ Particularly in discussions of natural law and political duty. See, for instance, Murphy Natural Law in Jurisprudence and Politics (Cambridge University Press, 2006), chapter 3, and Brennan, J. The Ethics of Voting (Princeton: Princeton University Press, 2011) chapter 5.

• (5)It is in everybody’s interest (except perhaps the criminal’s) that criminals are found out and get convicted, and that innocents do not.


• (6)Therefore, it is beneficial for all of us (except perhaps criminals) for eyewitness memory to be improved (from 4 and 5).

The problem here, as Hauskeller notes,¹⁹ is that just because we all share an interest in one thing (in this instance the successful prosecution of crime) it does not follow that pursuing that interest to the hilt is a good thing. Any aggregative conception of the common good has to factor in possibly competing shared interests and reach some sort of overall balance of those interests. Failing to do so can lead to a reductio of the preceding argument. For instance, permanent surveillance and enhanced interrogation techniques²⁰ would no doubt help in preventing and prosecuting crime, but the relentless pursuit of both would not serve the common good. People wish to live in a reasonably secure environment for sure, but they also wish to live in a reasonably free and non-oppressive environment too.²¹ Permanent surveillance and enhanced interrogation would undermine this. These other shared interests have to be taken into consideration so as to reach an all things considered measure of the common good.

This leads nicely to the second main strand of criticism against Vedder and Klaming, namely: that their proposal fails to properly consider damage to personal goods. The clearest expression of this critique is to be found in the response by Chang and Buccafurni.²² As they see it, the CGJ mounted by Vedder and Klaming reveals a deep underlying tension between certain personal interests and the common good. Specifically, they argue that if enhancement²³ is justified on the grounds that it contributes to a commonly shared goal, there is a danger that an individual’s sense of self worth will be diminished.

¹⁹ Hauskeller (n 14), p. 38 ²⁰ Both examples taken from Hauskeller (n 14), p. 38 ²¹ Peter Shiu-Hwa Tsu offers a similar line of criticism when he explores the potentially traumatic impact of memory enhancement on rape victims. Is this something we really wish to encourage just so as to improve the conviction rate? Maybe, but a careful balancing act needs to be undertaken. See Tsu, “Enhancing Eyewitness Memory in a Rape Case” (2010) 1(3) AJOB Neuroscience 41-42 ²² Chang, P L and Buccafurni, D “Is Invading the Sacred for the Sake of Justice Justified?” (2010) 1(3) AJOB Neuroscience 48. ²³ They argue that the term “manipulation” is more appropriate since enhancement, at least as defined by Vedder and Klaming could be harmful to individual welfare. This reveals, once more, the contested value-laden nature of the term “enhancement”.

How might this work? The claim is that if it becomes widely accepted that it is legitimate to interfere with a person’s cognitive capacities in order to achieve some common goal, then there is a danger that the individual will come to see themselves as a mere cog in a machine; as a mere means to a socially desirable end, not as an end in themselves. This, it is argued, is incompatible with a sense of self-worth:

“[I]ndividual good [is] not simply…the absence of physical or psychological pain but…the

presence of respect for cognitive capacities as an intrinsically valuable end in itself. If respect for

human cognitive capabilities is treated as an end in itself, then accepting the manipulation of these

capacities for the common good is a violation of this respect.”²⁴

Peter makes a similar point, in a different context, but perhaps more forcefully. As she puts it: “people should not simply be seen as patients, who do or do not have well-being, but as agents interested in the autonomous formulation and pursuit of their goals.”²⁵ If they see themselves as mere means to socially desirable ends, they will lose this sense of agency and their sense of self-worth will ebb away.

This looks to be a serious worry. If there is a deep tension between pursuing a shared interest through enhancement and valuing an individual’s sense of self-worth, then a CGJ justification for epistemic enhancement would not get off the ground. This is because valuing an individual’s self worth and ability to autonomously pursue their own sense of the good is a core commitment of contemporary liberal democracies and anything that undermines this commitment would have to be rejected. Responding to this worry will need to be part of any new positive case for epistemic enhancement.

But, in a way, Vedder and Klaming preempted this kind of concern by admitting that memory enhancement might conflict with rights to privacy and autonomy. Their solution was to adopt a system of informed consent: only those who understood the risks and problems associated with memory enhancement, and consented to those risks and problems, would undergo it. But as a number of critics have argued,²⁶ there are potentially coercive forces associated with enhancement for the common good that might serve to undermine this proposal. For example, in many legal systems, the

²⁴ Chang and Buccafurni (n 22), p. 49. ²⁵ Peter, F. “Pure Epistemic Proceduralism” (2008) 5 Episteme 33-55, at 36. ²⁶ Chang and Buccafurni (n 22) pp 49-50; Pierce, R. “Imperfection: Rights, Duties and Obligations” (2010) 1(3) AJOB Neuroscience, 39-41, p. 40; and Lindsay, R. “Don’t Forget Memory’s Costs” (2010) (1(3) AJOB Neuroscience 35-37.

obstruction of justice is an offence. Arguably, if what is stopping people from helping the police in their investigations is the fact that they have not undergone memory enhancement, they are obstructing justice. The penalties associated with this could have a coercive effect and undermine the informed consent model. Similarly, there is the fact that justice demands a fair trial for all. If this is prevented by the fact that some people choose not to undergo memory enhancement then, even if there is no specific legal requirement for it, there might be a general social pressure to undergo the enhancement. This too could be coercive and undermine the informed consent model.

To sum up, Vedder and Klaming’s proposal is subject to at least three lines of criticism, each of which forms a test that a successful CGJ for epistemic enhancement ought to overcome. First, there is the fact that their conception of the common good is underspecified and undertheorised. Assuming they are adopting an aggregative conception of the common good, identifying one shared interest that is served by epistemic enhancement is not enough to show that it serves the common good. Instead, it must be shown that the particular shared interest is balanced with other shared interests so that an all-things-considered determination of the common good is reached. Second, there is a danger that pursuing a shared goal might undermine an individual’s sense of self worth. To neutralise this threat it must be shown how epistemic enhancement can contribute to, not detract from, an individual’s sense of self-worth. Finally, there is the danger that epistemic enhancement becomes coercive. It must be shown that this is not the case.

4.1 - Liberal Commitments and Legitimacy Conditions

Liberal societies are founded on a core commitment to the freedom and equality of individual citizens. This commitment has been spelled out in different ways. Under the Rawlsian conception, the foundational commitment is embodied by the liberty principle,²⁷ which entitles every citizen to a basic domain of activity that is free from state interference and coercion (e.g. freedom of speech, conscience and so forth). Under other conceptions, the foundational commitment is understood in terms of the moral equality of citizens.²⁸ As Gaus explains it, this is the view that no citizen can claim moral authority over another, i.e. that they are all equal in terms of their moral authority: I cannot coerce you to follow my moral commands, and you cannot coerce me to follow yours.

What these conceptions share is the notion that freedom from state interference and coercion is, in some sense, the default position, i.e. there is no need to morally justify equal freedom, this is the basic right of all persons. Of course, defenders of liberalism — even in the more extreme libertarian form — tend to accept that some coercion is necessary²⁹ in order to avoid conflict and secure the benefits of cooperation. The institutions of state and governance, particularly those of a legal variety, seem to be heavily involved in the creation and maintenance coercive practices: they create coercive rules, and the mechanisms for enforcing those coercive rules. So the key question then becomes how can we justify those institutions in light of the default position?

²⁷ Rawls, J. A Theory of Justice (Rev. Edn, Harvard University Press, 1999), ²⁸ See Gaus, G. Contemporary Theories of Liberalism (London: Sage Publications, 2003), chapter 8; and The Order of Public Reason (Cambridge University Press, 2010), chapter 2 ²⁹ In the classic Hobbesian account, the coercive constraints of the state are necessary in order to avoid the state of unending war.

In answering this question, appeal is typically made to legitimacy conditions.³⁰ These are conditions which, if satisfied by the decision-making procedures within liberal institutions, render their coercive manifestations (the rules and enforcement mechanisms) legitimate. In other words, they justify the deviation from the default position. Legitimacy conditions break down into two types: instrumental and non-instrumental. An instrumental legitimacy condition will highlight how a decision-making procedure, or a feature thereof, contributes to a morally acceptable outcome. Hence, it can be justified as a means to a morally desirable end, an end that is in everyone’s interest (such as security and beneficial cooperation). A non-instrumental legitimacy condition will highlight how a decision-making procedure, or a feature thereof, is intrinsically morally valuable. Hence, it can be justified in and of itself, without reference to its outputs. This intrinsic value makes it appealing to all citizens, i.e. they all have an interest in having procedures of that form. This will typically be because the procedure respects their autonomy and moral agency by giving them a forum for making their preferences known and, if their preferences are not followed, offering reasons to them for the deviation.

It follows from this that there are three different ways to legitimate a decision-making procedure: (i) by appealing only to instrumental legitimacy conditions (pure instrumentalism); (ii) by appealing only to non-instrumental legitimacy conditions (pure proceduralism); or (iii) by appealing to some combination of both (mixed legitimation). We can summarise this in the following principle:

Legitimacy Principle: A coercive rule, practice or institution is justifiable in a

liberal society if and only if the procedure through which it is reached satisfies a

set of (instrumental/non-instrumental) legitimacy conditions LC1….LCn.

This allows us to develop the first key premise of my argument in favour of epistemic enhancement. This premise stipulates that it is in everyone’s interest to have legitimate decision-making procedures (i.e. procedures that follow the legitimacy principle). And this is because legitimate decision-making procedures help secure mutually desirable

³⁰ “Justice conditions” might also be appealed to, but the connection between legitimacy and justice is somewhat disputed. A recent article that explores the connection between justice and legitimacy is: Ceva,

E. “Beyond Legitimacy: Can Proceduralism say Anything Relevant about Justice?” (2012) 15 Critical Review of International Social and Political Philosophy 183. I agree with Ceva’s basic contention that procedures can be a locus of justice that is distinct from outcomes. That could be used to support the argument I advance in the text.

ends, or because they intrinsically respect autonomy and agency (i.e. respect individuals as agents not as patients), or because they do some combination of both. In this article, I remain somewhat agnostic as to which approach is correct, hence assuming the mixed account of legitimacy.

4.2 - The Legitimation of the Trial and Epistemic Enhancement

The next step of the argument is to show that epistemic enhancement can help governments to be compatible with the requirements of the legitimacy principle. In making this argument, I shall have to proceed carefully, tracing out precisely the mechanisms through which epistemic enhancement can contribute to legitimation. To do this, I will first consider in more detail the form that legitimacy conditions can take in different procedural contexts, specifically in the legislative and trial contexts. I will then try to describe the mechanism through which epistemic enhancement can help satisfy those conditions.

Rawls’s four-stage sequence is instructive in this regard.³¹ In setting out a programme for a just society, Rawls specified four procedural contexts, each involved in the construction of rules and principles, and each contributing to the overall structure of the just society. At the first stage — that of the original position — a decision-making procedure is used to locate the basic principles of justice. In Rawls’s scheme these are the liberty principle (already explained) and the difference principle (which specifies how social surpluses and burdens are to be distributed across the populace). At the second stage — that of the constitutional convention — a procedure sets out the framework for respecting basic liberties. At the third stage — that of the legislature — specific rules and laws are introduced for protecting liberties and enforcing a scheme of distribution. And at the fourth stage — that of “everyday life” — the laws of the state are imposed and applied (coercively) on the citizenry. The legal trial is located at this fourth stage as it decides upon the everyday application of the constitutional and legislative rules to the citizenry.

It is not my goal to defend a Rawlsian conception of a just society. But this four-stage schema will be helpful in understanding the form that instrumental and non

³¹ Rawls, J. A Theory of Justice (Rev. Edn, Harvard University Press, 1999), section 31.

instrumental legitimacy conditions can take in the justification of decision-making procedures. The first two stages are too abstract and general to warrant sustained discussion here, and legitimacy conditions arguably play an extremely complex role at these stages.³² So I sidestep a discussion of both by simply assuming that people have a shared commitment to liberty and moral equality. The latter two stages are rather more important and worthy of discussion. Indeed the relationship between legitimacy conditions at both stages plays a significant role in the argument I am making so I shall take some time setting out that relationship here.

Consider initially the legitimacy of legislative procedures, i.e. procedures designed to create a specific set of rules for protecting liberties and enforcing a scheme of distribution. Would a dictatorial legislature, in which one person makes all the decisions, be legitimate? How about an elitist legislature, in which an educated elite make all the decisions? Or how about a democratic one, in which all citizens or their chosen representatives make the decisions? One could argue for each, but the generally accepted view is that the democratic legislature would be the most legitimate one,³³ and I’ll accept that position here.

The question is “why?”. The answer must come from one of our three justifications listed above (pure instrumentalism, pure proceduralism, or mixed legitimacy). Proponents of epistemic democracy adopt an instrumentalist perspective and argue that democratic procedures are legitimate because they are best at tracking the truth.³⁴ In other words, that democratic procedures — be they based on voting or deliberation — are best at figuring out the normatively correct set of rules.³⁵ Proceduralist defenders of democracy will argue that democratic procedures are

³² Specifically at the first stage there is a worry that the constructive process envisaged by the original position presumes what it wishes to prove, namely: that we ought to be committed to liberty and fair distribution. ³³ It is possible that the others could be too. I’ll have more to say about this below, but some of the general arguments are well set out in: Machin, D. “The Irrelevance of Democracy to the Public Justification of Political Authority” (2009) 15 Res Publica 103; and also Estlund, D. “Making Truth Safe for Democracy” in Copp, Hampton and Roemer (eds) The Idea of Democracy (Cambridge: Cambridge University Press, 1993) and “Why not Epistocracy?” in Reshotko, N (ed) Desire, Identity and Existence: Essays in Honour of T.M. Penner (Academic Printing and Publishing, 2003) ³⁴ For a discussion and defence see: Estlund, D. Democratic Authority (Princeton, NJ: Princeton University Press, 2008); List and Goodin “Epistemic Democracy: Generalizing the Condorcet Jury Theorem” (2001) 9 Journal of Political Philosophy 277 (focusing on the epistemic virtues of voting); and Marti, J.L “The Epistemic Conception of Deliberative Democracy Defended” in Besson and Marti (eds) Deliberative Democracy and its Discontents (London: Ashgate Publishing, 2005) (focusing on the epistemic virtues of deliberation, though not necessarily antagonistic to voting). Gaus, G. Contemporary Theories of Liberalism (n 28), chapters 5 and 6 also gives a good overview of the kinds of arguments made by epistemic democrats. ³⁵ Obviously, this presumes cognitivism about moral truths, but this is, as Estlund and others have argued, a relatively weak presumption. Certainly, I will not be challenging the cognitivist assumption here.