John Danaher

Memory Detection Tests (MDTs) are a general class of psychophysiological tests that can be used to determine whether someone remembers a particular fact or datum. The P300 MDT is a type of MDT that relies on a presumed correlation between the presence of a detectable neural signal (the P300 “brainwave”) in a test subject, and the recognition of those facts in the subject’s mind. As such, the P300 MDT belongs to a class of brain-based forensic technologies which have proved popular and controversial in recent years. With such tests increasingly being proffered for use in the courtroom — to either support or call into question testimony — it would behoove the legal system to have some systematic framework for ensuring that they are used responsibly. In this paper, I defend one such framework for ensuring that this is the case: the legitimacy enhancing test. According to this test, it is appropriate to make use of technologies such as the P300 MDT whenever doing so would (probably) enhance the legitimacy of the trial. I argue that this test addresses tensions between scientific and legal norms of evidence, and exhibits a number of additional virtues including unification, simplicity and flexibility. Although the test is defended by considering the example of the P300 MDT, its significance is much broader than that. If it has the virtues I claim for it, it should provide a general framework for the responsible use of technologies, and the responsible innovation of social epistemic systems.

Rape and sexual assault are major problems. In the majority of sexual assault cases consent is the central issue. Consent is, to borrow a phrase, the ‘moral magic’ that converts an impermissible act into a permissible one. In recent years, a handful of companies have tried to launch consent apps which aim to educate young people about the nature of sexual consent and allow them to record signals of consent for future verification. Although ostensibly aimed at addressing the problems of rape and sexual assault on university campuses, these apps have attracted a number of critics. In this paper, I subject the phenomenon of consent apps to philosophical scrutiny. I argue that the consent apps that have been launched to date are unhelpful because they fail to address the landscape of ethical and epistemic problems that arise in the typical rape or sexual assault case: they produce distorted and decontextualised records of consent which may in turn exacerbate the other problems associated with rape and sexual assault. Furthermore, because of the tradeoffs involved, it is unlikely that app-based technologies could ever be created that would significantly address the problems of rape and sexual assault.

Is sex work (specifically, prostitution) vulnerable to technological unemployment? Several authors have argued that it is. They claim that the advent of sophisticated sexual robots will lead to the displacement of human prostitutes, just as, say, the advent of sophisticated manufacturing robots have displaced many traditional forms of factory labour. But are they right? In this article, I critically assess the argument that has been made in favour of this displacement hypothesis. Although I grant the argument a degree of credibility, I argue that the opposing hypothesis -- that prostitution will be resilient to technological unemployment -- is also worth considering. Indeed, I argue that increasing levels of technological unemployment in other fields may well drive more people into the sex work industry. Furthermore, I argue that no matter which hypothesis you prefer -- displacement or resilience -- you can make a good argument for the necessity of a basic income guarantee, either as an obvious way to correct for the precarity of sex work, or as a way to disincentivise those who may be drawn to prostitution.

This paper tries to clarify, strengthen and respond to two prominent objections to the development and use of human enhancement technologies. Both objections express concerns about the link between enhancement and the drive for hyperagency. The first derives from the work of Sandel and Hauskeller—and is concerned with the negative impact of hyperagency on social solidarity. In responding to their objection, I argue that although social solidarity is valuable, there is a danger in overestimating its value and in neglecting some obvious ways in which the enhancement project can be planned so as to avoid its degradation. The second objection, though common to several writers, has been most directly asserted by Saskia Nagel, and is concerned with the impact of hyperagency on the burden and distribution of responsibility. Though this is an intriguing objection, I argue that not enough has been done to explain why this is morally problematic. I try to correct for this flaw before offering a variety of strategies for dealing with the problems raised

We are living through an era of increased robotisation. Some authors have already begun to explore the impact of this robotisation on legal rules and practice. In doing so, many highlight potential liability gaps that might arise through robot misbehaviour. Although these gaps are interesting and socially significant, they do not exhaust the possible gaps that might be created by increased robotisation. In this article, I make the case for one of those alternative gaps: the retribution gap. This gap arises from a mismatch between the human desire for retribution and the absence of appropriate subjects of retributive blame. I argue for the potential existence of this gap in an era of increased robotisation; suggest that it is much harder to plug this gap than it is to plug those thus far explored in the literature; and then highlight three important social implications of this gap.

It is widely believed that a conservative moral outlook is opposed to biomedical forms of human enhancement. In this paper, I argue that this widespread belief is incorrect. Using Cohen’s evaluative conservatism as my starting point, I argue that there are strong conservative reasons to prioritise the development of biomedical enhancements. In particular, I suggest that biomedical enhancement may be essential if we are to maintain our current evaluative equilibrium (i.e. the set of values that undergird and permeate our current political, economic, and personal lives) against the threats to that equilibrium posed by external, non-biomedical forms of enhancement. I defend this view against modest conservatives who insist that biomedical enhancements pose a greater risk to our current evaluative equilibrium, and against those who see no principled distinction between the forms of human enhancement.

Soon there will be sex robots. The creation of such devices raises a host of social, legal and ethical questions. In this article, I focus in on one of them. What if these sex robots are deliberately designed and used to replicate acts of rape and child sexual abuse? Should the creation and use of such robots be criminalised, even if no person is harmed by the acts performed? I offer an argument for thinking that they should be. The argument consists of two premises. The first claims that it can be a proper object of the criminal law to regulate wrongful conduct with no extrinsically harmful effects on others. The second claims that the use of robots that replicate acts of rape and child sexual abuse would be wrongful, even if such usage had no extrinsically harmful effects on others. I defend both premises of this argument and consider its implications for the criminal law. I do not offer a conclusive argument for criminalisation, nor would I wish to be interpreted as doing so; instead, I offer a tentative argument and a framework for future debate. This framework may also lead one to question the proposed rationales for criminalisation.

Are universities justified in trying to regulate student use of cognitive enhancing drugs? In this article I argue that they can be, but that the most appropriate kind of regulatory intervention is likely to be voluntary in nature. To be precise, I argue that universities could justifiably adopt a commitment contract system of regulation wherein students are encouraged to voluntarily commit to not using cognitive enhancing drugs. If they are found to breach that commitment, they should be penalized by, for example, forfeiting a number of marks on their assessments. To defend this model of regulation, I adopt a recently-proposed evaluative framework for determining the appropriateness of enhancement in specific domains of activity, and I focus on particular existing types of cognitive enhancement drugs, not hypothetical or potential forms. In this way, my argument is tailored to the specific features of university education, and common patterns of usage among students. It is not concerned with the general ethical propriety of using cognitive enhancing drugs.

Theistic metaethics usually places one key restriction on the explanation of moral facts, namely: every moral fact must ultimately be explained by some fact about God. But the widely held belief that moral truths are necessary truths seems to undermine this claim. If a moral truth is necessary, then it seems like it neither needs nor has an explanation. Or so the objection typically goes. Recently, two proponents of theistic metaethics — William Lane Craig and Mark Murphy — have argued that this objection is flawed. They claim that even if a truth is necessary, it does not follow that it neither needs nor has an explanation. In this article, I challenge Craig and Murphy’s reasoning on three main grounds. First, I argue that the counterexamples they use to undermine the necessary truth objection to theistic metaethics are flawed. While they may provide some support for the notion that necessary truths can be explained, they do not provide support for the notion that necessary moral truths can be explained. Second, I argue that the principles of explanation that Murphy and Craig use to support theistic metaethics are either question-begging (in the case of Murphy) or improperly motivated (in the case of Craig). And third, I provide a general defence of the claim that necessary moral truths neither need nor have an explanation

Technology could be used to improve morality but it could do so in different ways. Some technologies could augment and enhance moral behaviour externally by using external cues and signals to push and pull us towards morally appropriate behaviours. Other technologies could enhance moral behaviour internally by directly altering the way in which the brain captures and processes morally salient information or initiates moral action. The question is whether there is any reason to prefer one method over the other? In this article, I argue that there is. Specifically, I argue that internal moral enhancement is likely to be preferable to external moral enhancement, when it comes to the legitimacy of political decision-making processes. In fact, I go further than this and argue that the increasingly dominant forms of external moral enhancement may already be posing a significant threat to political legitimacy, one that we should try to address. Consequently, research and development of internal moral enhancements should be prioritised as a political project.

Bayne and Nagasawa have argued that the properties traditionally attributed to God provide an insufficient grounding for the obligation to worship God. They do so partly because the same properties, when possessed in lesser quantities by human beings, do not give rise to similar obligations. In a recent paper, Jeremy Gwiazda challenges this line of argument. He does so because it neglects the possible existence of a threshold obligation to worship, i.e. an obligation that only kicks in when the value of a parameter has crossed a certain threshold. This article argues that there is a serious flaw in Gwiazda’s proposal. Although thresholds may play an important part in how we think about our obligations, their function is distinct from that envisaged by Gwiazda. To be precise, this article argues that thresholds are only relevant to obligations to the extent that they transform a pre-existing imperfect obligation or act of supererogation into a perfect obligation. Since it is not clear that there is an imperfect obligation to worship any being, and indeed since on a certain conception of moral agency it is highly unlikely that there could be, the search for a rational basis for the obligation to worship must continue.

The meaning of an utterance is often enriched by the pragmatic context in which it is uttered. This is because in ordinary conversations we routinely and uncontroversially compress what we say, safe in the knowledge that those interpreting us will ‘add in’ the content we intend to communicate. Does the same thing hold true in the case of legal utterances like ‘This constitution protects the personal rights of the citizen’ or ‘the parliament shall have the power to lay and collect taxes’? This article addresses this question from the perspective of the constitutional originalist—the person who holds that the meaning of a constitutional text is fixed at some historical moment. In doing so, it advances four theses. First, it argues that every originalist theory is committed to some degree of pragmatic enrichment, the debate is about how much. Second, that in determining which content gets ‘added in’, originalists typically hold to a common knowledge standard for enrichment, protestations...

The lie detector test has long been treated with suspicion by the law. Recently, several authors have called this suspicion into question. They argue that the lie detector test may have considerable forensic benefits, particularly if we move past the classic, false-positive prone, autonomic nervous system-based (ANS-based) control question test, to the more reliable, brain-based, concealed information test. These authors typically rely on a “comparative advantage” argument to make their case. According to this argument, we should not be so suspicious of lie detection evidence if it has comparative advantages over the epistemic methods currently utilised by the legal system. In this article, I add to this growing support by making a novel comparative advantage argument in favour of brain-based lie detection evidence. The argument focuses on the P300 concealed information test (P300 CIT), which has several unique properties, and on the effect it may have on pre-trial bargaining in criminal cases rather than in-court evidence. The thesis is that P300 CIT could allow for innocent defendants to credibly signal their innocence to investigators and prosecutors during pre-trial bargaining more effectively than current proposed methods for doing the same thing. I defend this argument from a number of objections, and suggest that it opens up an interesting avenue in the ongoing debate about the merits of this technology. Although the argument is presented with the criminal law in mind, it could form part of a more general cumulative case in favour of this technology.

The debate over the merits of originalism has advanced considerably in recent years, both in terms of its intellectual sophistication and its practical significance. In the process, some prominent originalists—Lawrence Solum and Jeffrey Goldsworthy being the two discussed here—have been at pains to separate out the linguistic and normative components of the theory. For these authors, while it is true that judges and other legal decision-makers ought to be originalists, it is also true that the communicated content of the constitution is its original meaning. That is to say: the meaning is what it is, not what it should be. Accordingly, there is no sense in which the communicated content of the constitution is determined by reference to moral desiderata; linguistic desiderata do all the work. In this article, I beg to differ. In advancing their arguments for linguistic originalism, both authors rely upon the notion of successful communications conditions. In doing so they implicitly open up the door for moral desiderata to play a role in determining the original communicated content. This undercuts their claim and changes considerably the dialectical role of linguistic originalism in the debate over constitutional interpretation

Klaming and Vedder (2010) have argued that enhancement technologies that improve the epistemic efficiency of the legal system (“epistemic enhancements”) would benefit the common good. But there are two flaws to Klaming and Vedder’s argument. First, they rely on an under-theorised and under-specified conception of the common good. When theory and specification are supplied, their CGJ for enhancing eyewitness memory and recall becomes significantly less persuasive. And second, although aware of such problems, they fail to give due weight and consideration to the tensions between the individual and common good. Taking these criticisms onboard, this article proposes an alternative, and stronger, CGJ for epistemic enhancements. The argument has two prongs. Drawing from the literature on social epistemology and democratic legitimacy, it is first argued that there are strong grounds for thinking that epistemic enhancements are a desirable way to improve the democratic legitimacy of the legal system. This gives prima facie but not decisive weight to the CGJ. It is then argued that due to the ongoing desire to improve the way in which scientific evidence is managed by the legal system, epistemic enhancement is not merely desirable but perhaps morally necessary. Although this may seem to sustain tensions between individual and common interests, I argue that in reality it reveals a deep constitutive harmony between the individual good and the common good, one that is both significant in its own right and one that should be exploited by proponents of enhancement.