Tuesday, December 05, 2006


I think it is incredibly important when discussing law and technology (or some specific issue such as technology's impact on equality) to be clear about definitions. In my own work, I tie technology to human capacity (so a change in technology is the ability to engage in some new form of conduct). This means that technological change is what gives rise to the possibility of new entities, new objects and new relationships. THAT is what makes "law and technology" interesting. If law limits what actions we may perform, what objects we may create and use, and what relationships are recognised - then technological change inevitably generates issues for law.

Imagine a graph with "people/groups" on one axis and "conduct" on the other. Shade it according to your current understanding of what different people are permitted to do/prohibited from doing (use greys for uncertainty). [Don't actually do this, by the way, it would take more than one lifetime - just imagine doing it]. Now add some new set of activities to the "conduct" axis. No surprises that a bunch of new questions come up - if we map existing legal rules onto the new section of our graph - do we get more uncertainty/grey patches, do the results sometimes jar with what are felt to be the goals and purposes of the rules being applied, should the default "permission" where no existing rules apply be changed to "prohibition" in some circumstances, and so forth.

One can, of course, define technology more broadly. In philosophy, technology is commonly equated with what I would call "technique." In this sense, everything from corporations, to bureaucracy to law itself is a "technology." I have no problem with this as a definition of technology (and the extended definition leads to some interesting philosophical debates) but I am not sure it is helpful in answering most "law and technology" questions. It seems to me it collapses into a debate about everything. Of course, the problem of law as a technology/technique and the over-legalisation of society (as part of the hyper-rationality/technicality of the modern age) raises interesting questions in its own right, but it seems to me they are different questions (although I know Kieran would disagree with me here and look forward to his comments accordingly).

Returning to Frank's theme of technology and inequality: If technology is understood more broadly as including technique and hence legal devices such as contracts, corporate law, etc, then the debate is reduced to whether law, social and socio-technical structures give rise to inequality. The answer must clearly be "yes" - after all inequality is observable within most societies and in the world as a whole.

So, what can my suggested definition offer Frank's discussion of technology and inequality. I think it is this. New technologies mean new (physical) possibilities. To steal Frank's example, humans can now make themselves taller. This creates the possibility of a new "arms race." There are of course arms races that have little to do with technological change understood in my narrower sense (for example, getting richer itself). But new possibilities often create new choices. Should this type of arms race be encouraged? - Should such drugs be patentable, Should government R&D funding be used on creating/enhancing such drugs, Should the drug be banned? Should it be controlled or limited to particular situations - if so how (private ethical rules of the medical profession, government regulation, public health insurance coverage only available in some situations, etc.)? As opposed to background questions about equality (how ought taxes be structured, what welfare services are available, should we convert to communism etc.), the issues that arise upon technological change are in some sense "new" or at least new at some stage of technical development. Before the first human enhancement technology, there was no real need to consider the possibility of restricting patentability to products in such an area. Before human growth drugs, there was no need for a law limiting intervention to certain situations.

We need a theory of law and technology (or, in Frank's case, a theory of legal responses to situations where new technology risks enhancing inequality) because we always need to be ready to respond to issues as they arise. It helps to recognise problem-types (eg arms races) so that we can recognise the problem and respond appropriately as and when it arises.


Blogger Frank said...

That's a very insightful way of dealing with the definitional issues. Yes, I agree, there's something unique about the "thingness" of the technologies we can distinguish from law. Even though an anti-circumvention law and a digital DRM program may accomplish very similar ends, it is helpful to separate out the latter from the former (and to focus on the program) for our circumstances.

Of course, software is in a sense the hardest case, since it is on some level a series of instructions (or laws). But Lessig appeared to recognize the distinction in his classic 4-part account of "things that influence/control behavior" (law, norms, architecture, markets).

And the type of distinction you're drawing makes even more sense with the usual run of innovations we address.

12/06/2006 8:05 AM  

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