Should We Have a General Theory of Law & Technology?
Introductions have the peculiar nature of usually being written at the end after all was said and done. At the same time, their writers try to give the illusion of setting the stage for what will come next. As the host of a linear online symposium I am this week in the odd position of actually writing an introduction at the beginning. Considering this limitation, I would like to raise the main issues I hope will be discussed in the symposium and get the reactions of the other participants and readers on where they hope the symposium will go.
I believe there are two meta-issues that are critical to this inquiry. First, should we have a general theory of law and technology? Second, what form should such a theory take?I will focus today on the first meta-issue: Is it a good idea to have a general theory of law and technology? Should we try to generate principles that will provide us with advance guidance for approaching a new technology? For example, we are currently trying to decide how to deal with privacy threats imposed by RFID tags that are incorporated into passports. Should we generalize from previous efforts to regulate technologies that threatened privacy to formulate principles that will guide us in the case of RFID tags? Alternatively, should we formulate principles that will serve as common guidelines for regulating the adoption of technologies that produce similar social tensions, but at first blush appear quite different? For example, genetic testing and the Internet, two technologies, which were recently diffused, produce similar social tensions. Should they be governed by common principles?
Two primary objections are likely to be brought forward. First, such an endeavor is antithetical to the very essence of technological change. The application of general principles will suffocate human creativity. We are likely to make decisions that will inhibit new opportunities at the expense of stability and social order. Second, the articulation of general principles would be impractical and doomed to failure. Nobody could have predicted the way the Internet has changed our lives. Technology advances beyond our wildest imagination - any principles we formulate today will become very quickly extinct and unworkable.
I anticipate that many scholars writing in the area of law and technology are likely to object to the idea of a general theory of law and technology. I hope they will participate in the debate.
I believe there are two meta-issues that are critical to this inquiry. First, should we have a general theory of law and technology? Second, what form should such a theory take?I will focus today on the first meta-issue: Is it a good idea to have a general theory of law and technology? Should we try to generate principles that will provide us with advance guidance for approaching a new technology? For example, we are currently trying to decide how to deal with privacy threats imposed by RFID tags that are incorporated into passports. Should we generalize from previous efforts to regulate technologies that threatened privacy to formulate principles that will guide us in the case of RFID tags? Alternatively, should we formulate principles that will serve as common guidelines for regulating the adoption of technologies that produce similar social tensions, but at first blush appear quite different? For example, genetic testing and the Internet, two technologies, which were recently diffused, produce similar social tensions. Should they be governed by common principles?
Two primary objections are likely to be brought forward. First, such an endeavor is antithetical to the very essence of technological change. The application of general principles will suffocate human creativity. We are likely to make decisions that will inhibit new opportunities at the expense of stability and social order. Second, the articulation of general principles would be impractical and doomed to failure. Nobody could have predicted the way the Internet has changed our lives. Technology advances beyond our wildest imagination - any principles we formulate today will become very quickly extinct and unworkable.
I anticipate that many scholars writing in the area of law and technology are likely to object to the idea of a general theory of law and technology. I hope they will participate in the debate.
posted by Gaia Bernstein at 6:00 PM
4 Comments:
Frank,
Could you re-post your comment
As for the objections--I'd add one more--the idea that new technology is inherently unregulable in a globalizing and interconnected world. For example, the idea that if the U.S. banned cloning, it would just happen offshore.
There's an interesting response to that idea in Francis Fukuyama's Our Posthuman Future; I'll try to flesh it out in my posts next week.
I am not so sure that the application of general principles will necessarily stunt technological development. It would depend on the substance of the general theories. General theories may also tell us when NOT to regulate, or when to use private rather than public regulation and so forth.
Also, I am not so sure that a general theory of law and technology will necessarily be only about the question of regulation or control. There are many legal issues that arise in the context of technological change that are not directly connected with aiding or preventing technological development. For example, how to deal with problems of classification - one question I am looking at currently is how we decide whether new (or newly separated/valuable) entities (from body parts to virtual real estate) can be objects of "property". This is not just a property law issue - classifications within tort law and statutory classifications can also be difficult in the context of technological change. Nor does the globalisation argument necessarily impact here - technology has impacts on people in real places or jurisdictions. If damage is caused to a human embryo in a lab in Sydney or California - how do we classify the harm?
In response to Gaia's second point - technological change is unforeseeable. This is true and there may be issues that will come up that we cannot predict based on our previous experience. But there will also be issues that we have experienced often enough that we can predict they will arise again (although the precise context in which they will arise may be hard to foresee).
Finally, with respect to Frank's point on globalisation more generally. I am not sure that the "but it will just happen somewhere else" argument is a sufficient reason not to ban cloning (there may be other reasons, I am not going into that now). If another jurisdiction decided to permit rape or murder, that would not be a reason to shrug shoulders and permit the same thing everywhere. I want to live in a society where certain activities (eg rape, murder, discrimination) are prohibited. Ideally, I would like these things to be prohibited everywhere. But I have a greater ability to exercise control over my own government (admittedly still a limited ability) than elsewhere. If I concluded that certain types of cloning were on the same list (because of harm to embryos / children depending on type of cloning) - then I would similarly support prohibitions or restrictions. There are some things where without global control, local control seems irrelevant (some environmental harms are in this category) but this list does not extend to all technological possibilities.
One might, on the other hand, argue in terms of the economics. "This is going to happen anyway so it may as well be us making the money." There are countries where money is made out of the sexual exploitation of women and/or children. Or significant profits from growing poppies for drug production. If we decide these activities are immoral, then we shouldn't do them. The fact that children will still be exploited and poppies will still be grown is regretable (and one might try to stop it through advocacy or international treaties) but it is does not make it ok to jump on the bandwagon.
Perhaps we should have a general theory of law and technology. But I don't think we need a general theory of whether we need a general theory of law and technology. Why not judge proposed theories of law and technology as they are offered and decide with respect to each whether they are good theories?
In my opinion, there is still room for the broader question. I have presented my own theory of law and technological change in several contexts and sought comments from several people separately. One common question, which I am still grappling with myself, is why do this sort of generalised thinking. Can we learn anything from the legal shifts in the days of railroad law and apply those lessons today? Can those same lessons be learnt in the absence of the broader context? Such questions must be answered in two ways. (1) What is your theory (ie what common threads or points are there) and (2) why oughtn't your focus be narrower (one technology type at a time - to get more information about less) or broader (why not a general theory of law and change or law full stop). The first question can be tackled theory by theory. The second question has at least some elements that apply across theories. There are also some general criticisms (in the initial post and Frank's point) that could be asked about any theory of law and technology.
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