What Form Should a General Theory of Law & Technology Have?
The second meta-issue I hope this symposium will address is what should a general theory of law & technology look like? What intrigued me as I was searching for participants for this project was that the scholars who have started writing on this issue have gone in very different directions.
There are many alternative routes that a general theory of law and technology could take. Let me just offer a few options. One issue that should be resolved at the outset is whether the theory should have broad principles that apply to all technologies or whether it should offer narrower principles relevant to different categories of technologies? If we choose to formulate narrower principles, the question becomes what should be the basis for distinguishing between technologies. Should we differentiate according to the technical attributes that are relevant to technological adoption? For example, we could treat technologies that are centrally diffused like genetic testing differently than we treat technologies that are decentrally diffused like the Internet (see here). Or perhaps we should differentiate between technologies on the basis of the social purpose they serve. For example, we could have one set of principles to govern communication technologies and another to govern medical technologies. Another option would be to formulate a theory that differentiates on the basis of the social values or institutes a new technology destabilizes. For example, we could have one set of principles dealing with technological threats to the value of privacy and another set for technological threats to the institute of the family.
Since I know the participants of this symposium have different takes on this issue - I invite them and other readers to offer their proposals.
There are many alternative routes that a general theory of law and technology could take. Let me just offer a few options. One issue that should be resolved at the outset is whether the theory should have broad principles that apply to all technologies or whether it should offer narrower principles relevant to different categories of technologies? If we choose to formulate narrower principles, the question becomes what should be the basis for distinguishing between technologies. Should we differentiate according to the technical attributes that are relevant to technological adoption? For example, we could treat technologies that are centrally diffused like genetic testing differently than we treat technologies that are decentrally diffused like the Internet (see here). Or perhaps we should differentiate between technologies on the basis of the social purpose they serve. For example, we could have one set of principles to govern communication technologies and another to govern medical technologies. Another option would be to formulate a theory that differentiates on the basis of the social values or institutes a new technology destabilizes. For example, we could have one set of principles dealing with technological threats to the value of privacy and another set for technological threats to the institute of the family.
Since I know the participants of this symposium have different takes on this issue - I invite them and other readers to offer their proposals.
posted by Gaia Bernstein at 8:21 PM
2 Comments:
The short answer is I think it depends on what issue one is examining and to what extent differences can be thought about within the same framework.
Consider the idea of regulation to protect current values, and the form and timing of that regulation. Your piece argues (convincingly) that a quick response is more important in some contexts than in others. That conclusion was itself reached by comparing very different technologies. I have argued elsewhere that government pressure to adopt private regulation rather than the enactment of public regulation offers some advantages. I believe those advantages are universal in areas of ongoing technological change (but only have evidence for one technology), although they may be outweighed by other factors in particular contexts and industries (such as the inability of some groups to co-ordinate private regulation or enhanced urgency).
Looking outside the context of regulation as such, I believe that similar legal issues can arise in very different contexts - the common factor is technological change. There is, I believe, value in noting similarities in difficulties of drafting legislation designed to deal with changing technologies in different areas (eg e-commerce and assisted reproduction).
PS - do you know where the previous post went?
You've asked "whether the theory should have broad principles that apply to all technologies or whether it should offer narrower principles relevant to different categories of technologies."
It's an interesting dilemma that faces social science and law generally: whether to offer a very parsimonious and accurate theory that crystallizes some delimited area of experience, or to offer a broader scope of analysis.
I hope to convince readers next week that whatever their theory of technology regulation, "special rules" have to apply to interventions designed to make people "better than well" (to use Carl Elliott's memorable book title).
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