Monday, December 18, 2006

Recurring dilemmas

Thank you for the introduction Gaia! Being here in Australia, I am probably a bit out of kilter on the time zones, but hopefully I haven't kept you waiting too long.

I want to begin by introducing my theory of "recurring dilemmas" - the idea that the "same" legal problems are occurring in different technological contexts. Taken at a sufficiently high level of abstraction, problems discussed in the context of railways, genetic testing, computing, the Internet, nanotechnology, and so forth can be grouped into the following categories:

1. The need for special rules to deal with a new situation;

2. Uncertainty as to how the law applies to new forms of conduct, in particular:
(a) uncertainty as to how a new activity, entity or relationship will be classified;
(b) uncertainty where a new activity, entity or relationship fits into more than one classification, so as to become subject to different, conflicting rules;
(c) uncertainty in the context of conflicts of laws;
(d) uncertainty where an existing category becomes ambiguous in light of new forms of conduct;

3. Over-inclusiveness and under-inclusiveness (where the correspondence between the language of rules and their objectives decreases)

4. Obsolescence, where:
(a) conduct regulated by an existing law is no longer important;
(b) a rule can no longer be justified; or
(c) a rule is no longer cost-effective.

This does not mean that all technologies raise problems in every category, only that for most "new" legal problems we have seen them before in a different guise.

During the remainder of my week, I want to demonstrate that technological change has "special" consequences for law - it generates legal problems of a different type to, for example, scientific change or ordinary changes in behavior.


Blogger Frank said...

that's a very nice taxonomy. I think it would apply to almost all technical phenomena.

But I wonder if there's ever room for isolating something out as "totally different." Like nuclear weapons being qualitatively more destructive than weapons that came before. Or genetic engineering raising totally new horizons of human self-manipulability.

PS: re the technology of war, this Max Boot book looks interesting:

12/19/2006 4:16 PM  
Blogger Lyria Bennett Moses said...

Thanks Frank. It is true that different technologies raise very different issues in some sense - your example of genetic engineering fits in nicely here. My response would be that doing a theory of technology and law and then stopping would yield very little. But that does not stop particular issues being able to be placed in the same framework.

Consider genetic engineering allowing humans to manipulate themselves. This creates potential dangers (our acts could lead to self-extinction), religious concerns (ought we interfere?), equality concerns (will this lead to different classes of humans, Brave New World type breeding, etc). I could obviously go on. All of these demonstrate a conflict between the technology's potential and our social/cultural/political/human values (or at least those of some members of society). To the extent that we wish to ban or limit genetic engineering in response to these concerns, we are in my first category.

Now, we can get into the same category in other ways. UK laws limiting the number of embryos that can be transferred in IVF is done for health concerns; laws stating that only certain professionals can perform certain procedures is done for health or safety concerns; laws limiting abortion might be done due to moral concerns (whether or not derived on the foundation of a religious belief).

In some sense, these examples have nothing in common. It is certainly possible to argue that genetic engineering raises issues that are "unique." But they do nevertheless have something in common. The commonalities can lead to general observations (eg comments by both Gaia and myself on the best timing of regulation, both in relation to technology generally and in relation to certain categories of technology or legal problems). Such general observations may sometimes be useful, but they will always be at a very high level of generality and subject to contextual differences.

In short - I agree that certain technologies present unique issues, but I don't see how that prevents one making some observations in a broader context.

Finally, thanks for the reference!

12/19/2006 7:21 PM  
Blogger Kieran Tranter said...

I agree with Frank that you provide a nice taxonomy. And importantly in doing so you address the concern of legal hysteria that often follows a public risk panic about a specific emergent technology. However, are you providing a set of generalized historical descriptions based on a data set of past law-technology interactions?; or are you providing a set of prescriptions for lawmaking concerning technological change? The difficulty, abstractly put, is the old is-ought distinction; pragmatically put, the issue is how, at a particular moment (and particularly within the noise and color of a public risk panic about the imaginative possibilities of an emergent technology), and without the certainty of historical analysis, are lawmakers to know which category they are in? I am probably revisiting Frank's point regarding genuine revolutionary technologies, but an aspect of the sociological description of a risk panic is a publicly expressed belief by actors that the circumstance (new technology, social dilemma, et al) is so different from the past that past approaches are inappropriate. In other words most risk panics about technologies frame the technology as a genuine revolution. The social scientific literature looking at the representation of technology in media reports documents this in the use of the atomic bomb trope in association with any emergent technology. IE “human cloning, like the atomic bomb…” or “nanotechnology has the potential to revolutionize manufacturing, like the atomic bomb did warfare…”

I think the question is one of registers. Is your taxonomy a way of thinking through past technology-lawmaking events (in which case it is a useful mode of organizing) or a guide for the present in making law facing an uncertain future (in which case its utility is the sound advice of DON'T PANIC no matter how novel, no matter which actors are claiming that this technology is beyond law, law can continue. Except, of course if the technology is genuinely revolutionary, like telepathy, and then it might not…

12/20/2006 8:37 AM  
Blogger Lyria Bennett Moses said...

It is both - a scheme for understanding the past and a guide for the future.

I suppose my theory is stronger at beating certain forms of panic than others. I doubt that anyone could say "there is no such thing as a technology we should panic about" - perhaps we really should be worried about certain things (nuclear warfare, telepathy, etc). Some activities ought to be prohibited, and quickly (although it will never be the first time that we feel a need to prohibit something). Some need to be placed under tight control, and quickly (although, again, it won't be the first time). I am not saying "never panic" although the fact that we have been through a number of "revolutions" may increase skepticism that the next big thing really is as big as media hype suggests.

What I am primarily addressing is a different type of panic, let's call it lawyer's panic. This is the sort of panic one sees with the Internet - oh my goodness, all our current law is obsolete. Here, my advice would be that the sorts of problems that arise (over-inclusiveness, under-inclusivess, obsolescence, uncertainty) have arisen before and we have dealt with them before. It is not a case of all law being instantaneously obsolete.

12/20/2006 5:09 PM  

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