Abstract
This chapter assesses the adequacy of a general regulatory principle for the use of performance enhancing technologies. Drawing on the concepts of (no) harm and (free and informed) consent (which are central to the regulation of medical treatment—and, quite possibly, enhancement), the principle holds that it is permissible for competent agents (such as Olympic competitors) to use enhancers unless either (i) use causes harm to others (who have not consented to this risk) or (ii) the user has freely agreed to act on a no-enhancement basis. For agents who are not competent, the governing regulatory principle would be paternalistic. Against those (largely dignitarian) views that would categorically reject such a permissive principle, it is argued that (provided that the principle is anchored to an ethic of the rights of agents) it is on the right lines. However, caveats are entered against the use of enhancers in such a way that this jeopardises the possibility of agents trying to do the right thing for the right reason.
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Notes
- 1.
This was a distinction that troubled me in Brownsword (2009). However, if we adopt the proposed master principle, the critical question is not whether the context is competitive or non-competitive but whether the agent has freely accepted the restriction on the use of enhancers.
- 2.
I use the term ‘Corinthian’ because (at any rate, to my mind) it evokes a spirit of honest participation, of idealism, of ‘naturalism’, and of ‘amateurism’ in the best sense. However, I am grateful to the editors who have pointed out to me that Oscar Pistorius, arguably the most ‘unnatural’ of elite athletes, has a biblical line from Corinthians tattooed across his back (the line says: ‘I do not run like a man running aimlessly’).
- 3.
According to the Article 4.3 of the World Anti-Doping Agency (2003), a substance or method shall be considered for inclusion on the World Anti-Doping Agency’s Prohibited List where it meets any two of the following three criteria: (i) it has the potential to enhance, or it enhances, sport performance; (ii) it represents an actual or potential health risk to the athlete; and (iii) its use violates the spirit of sport. At page 3 of the Introduction to the Code, the spirit of sport is said to be the ‘celebration of the human spirit, body and mind’ and it is characterised by the following values: ethics, fair play and honesty; health; excellence in performance; character and education; fun and joy; teamwork; dedication and commitment; respect for rules and laws; respect for self and other participants; courage; and community and solidarity. In short, doping is ‘fundamentally contrary to the spirit of sport’ (ibid).
- 4.
In general, the effectiveness of regulatory control depends on a combination of regulator-side factors (such as corruption, capture, and resources) and regulatee attitudes (such as whether regulatees are minded to ‘game’ the system or to invest in avoidance or evasion). For an interesting insight, see Møller (2010: 160).
- 5.
It also needs to be borne in mind that regulators can constrain conduct by designing products (for example, tennis or golf balls designed to control their velocity) and places in a certain way (for example, think about the way that different tennis court surfaces, including the particular kind or length of grass used at Wimbledon, affect the pace of the game). In other words, the ingredients in the regulatory environment go beyond the governing rules (Brownsword and Somsen 2009).
- 6.
- 7.
“It is commonly said that enhancement, cloning, and genetic engineering pose a threat to human dignity. This is true enough. But the challenge is to say how these practices diminish our humanity” (Sandel 2007: 24).
- 8.
Granted, there are some significant pockets of dignitarianism in European law—notably in the moral exclusions against patentability in the EC Directive on the Legal Protection of Biotechnological Inventions (Directive 1998/44/EC). For the bite of the dignitarian reading of the exclusions, see Brüstle v Greenpeace eV (Case C34-10) (judgment of the ECJ handed down on 18 October, 2011); and, similarly, see the WARF case (Case G 0002/06, 25 November 2008) where the Enlarged Board of Appeal at the European Patent Office read the same exclusion in the same way. Coincidentally, at almost the same time that the ECJ decided the Brüstle case, the Grand Chamber of the European Court of Human Rights upheld dignitarian Austrian legislation concerning access to IVF (see application no. 57813/00, Judgment given on 3 November 2011).
- 9.
- 10.
For a rather different illustration of the same underlying idea, see Brownsword and Earnshaw (2010).
- 11.
Elsewhere, I have characterised this as an alliance of dignitarian views (Brownsword 2003).
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Brownsword, R. (2013). A Simple Regulatory Principle for Performance-Enhancing Technologies: Too Good to Be True?. In: Tolleneer, J., Sterckx, S., Bonte, P. (eds) Athletic Enhancement, Human Nature and Ethics. International Library of Ethics, Law, and the New Medicine, vol 52. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-5101-9_16
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