- MIZUNO Tasuku (IP law, information law, legal affairs concerning start-ups and advanced technology)
Attorney at City Lights Law/Visiting professor at Kyushu University Global Innovation Center
More than two years have passed since I was appointed as an advisor to the Responsible Innovation with Conscience and Agility (RInCA) program, but I still feel uncertain about my place in the program. I am a lawyer and legal practitioner, not a specialist in ethics or the philosophy of law. I do sometimes provide legal support to start-ups that apply emerging science and technology (S&T) to society as their business, as well as to new projects of large companies. I also sometimes provide advice and proposals on innovation policy and rulemaking. But these are supports for the implementation of S&T - or projects based on such S&T - in society. In contrast, what is important in discussions on ethical, legal, and social implications/issues (ELSI) and responsible research and innovation (RRI) is to examine broadly, deeply, and sometimes critically the possible social impacts of the S&T in question, without assuming its social implementation as a given. Of course, the RInCA program also includes projects that focus on the ELSI/RRI of S&T in the social implementation phase, where discussions of legal systems may be foregrounded as a social implementation theory. For S&T in the early stages, however, ethical issues tend to be placed in the foreground and legal issues in the background. The basic principle of "Law as the ethical minimum" about the relationship between law and ethics was set out German jurist Georg Jellinek. But if ethics normatively encompasses law, then I wonder if there is a place for the "L" of ELSI in early-stage S&T. If so, I wonder if the discourse among legal practitioners like myself will prove to be a discussion about social implementation theory rather than an ELSI/RRI discussion. This kind of self-examination and self-imposed discipline makes me feel uncomfortable. I would like to call the disconnect between the ELSI/RRI discussion, which does not shy away from a critical examination of S&T, and the social implementation discussion a "Valley in the discourse on ELSI and RRI."
On the other hand, despite this uncomfortable feeling, I have frequent opportunities to participate in ELSI/RRI discussions calling for the creation of legal systems. Such "legalization" (read: legal institutionalization) of ethics and the proximity or coincidence of ethics and law can be seen everywhere. However, if we assume as a premise arguments that distinguish law from ethics as having the enforceable power of the state, or that distinguish social ethics from individual ethics, there is a concern that the easy legalization of ethics may eliminate the underlying potential of S&T. Of course, not all positive laws are legally enforceable, but, especially in today's society, in which ethical and moral views are becoming increasingly diverse, we should ask ourselves who such ethics are for. Even if we assume a certain level of ethics as a premise, we should not succumb to the easy legalization of ethics. Lawyers are often expected to "make law," but I believe it is also the role of lawyers involved in ELSI/RRI to "not make law," to accumulate logical arguments to do so, and to patiently oppose the easy legalization of ethics.
In order to overcome the "Valley in the discourse on ELSI and RRI," I believe it is important to view ELSI/RRI as bottom-up rulemaking by researchers. Many researchers, especially those who are engaged in basic research, want to concentrate on their research and leave social implementation to others. Unfortunately, however, the social environment surrounding S&T is progressing at a pace that no longer allows this. I am in a position where I am relatively close to projects and I can look at legal systems and legal policies related to S&T, but I don't make a judgment here on whether discussions on ELSI/RRI are good or bad. Nevertheless, I do have a sense that discussions on ELSI/RRI in the EU and other countries are linked to strategic rulemaking in relation to international competition and the possibility of implementation and advantages of S&T and projects based on such S&T. In rulemaking such as legal systems, the era of a division of labor, in which researchers concentrate on research and politicians and bureaucrats create systems and rules, is already over. We are now moving into an era in which the private sector, including private citizens and businesses, collaborates with the public sector to co-create rules in an agile manner. I wonder if the increased attention paid to ELSI/RRI in rulemaking in recent years should be seen as a sign that such needs for "rule co-creation" are coming to the field of research and development in S&T as well. At the same time, this indicates the possibility of both the inevitability of researchers becoming involved in rulemaking and opportunities for such, using ELSI/RRI as a starting point.