Friday, February 09, 2007


In my last entry I finished on three points.

First the contributions to this symposium seemed to be establishing a field of “Law, Technology and Society Studies” (LTSS), but not providing a theoretical account of law and technology (LaTT).

Second, while LTSS is a significant, worthwhile project which I strongly support, it is characterized by two absences. (1) No articulation of the underlying theory of law. (2) Technology has an absent future.

Three, that moving from LTSS to LaTT involves a reconsideration of Frankenstein.

Before I do so I want to deal with the perfunctory why bother? What is the point of LaTT? My personal response is aesthetic (and probably a poorly articulated Platonism) that theory possesses an intrinsically powerful attraction on the human soul so that humans are drawn towards speculation and the general. In other words we diminish ourselves if we deny the urge to seek glimpses of the substance casting the shadows of the everyday.

In addition, and much more pragmatically I would like to adopt Frank’s response to Mike Madison (who I made a star of in my earlier blog). In response to Mike’s “why theorize ?”, Frank suggested:

But I think it’s also good to try to get one’s theoretical presuppositions on
the table, and exposed to critique from a group of scholars who think
of themselves as trying to understand a common set of phenomena.

In other words LaTT is needed as the critical counterpoint to LTSS that provides a forum for questioning the assumptions that guide the LTSS’s research, helping it refine, develop and renew.

Just before I begin Frankenstein I wish to note that the argument presented in the remainder of this entry, and the next two is more fully elaborated in my paper forthcoming in the Minnesota Journal of Law, Technology and Science. I am working on SSRN post. In the meantime I am happy to circulate the paper via email.

Let us return to the two absences in LTSS, no account of law and no account of technology’s future. These two absences become linked when looking at Frankenstein.

Frankenstein is the quintessential text on technology and humanity of the modern West. As the dilemma of the modern West is technology and humanity, it is not an extreme position to regard Frankenstein as an Ur-text of modernity. Its foundational position within science technology studies and within popular representations of technology attests to its significance. My
suggestion is that LTSS is conceptually structured on a specific legal manifestation of Frankenstein.

Frankenstein provides a series of interlinked characterizations and associations concerning scientists, technology and human society. In this Victor Frankenstein epitomizes the rational scientist too preoccupied with his techniques to consider the wider context of his illicit creation. As a metaphor for technology the monster is ambiguous. It has the potential for good (rescuing the child, appreciating Goethe, Plutarch and Milton) and the potential for evil (murdering Elizabeth). It is at once a thing to be pitied and a thing to be feared, and most readers are quick to see that Victor, with his ego and petty revulsion, as the true monster. But the monster’s “thing-ness”, its status as external to humanity, is repeatedly emphasized through its exclusion from human society and its desire for a mate of its own kind. The monster as technology presents technology as amoral and non-human. The monster is outside of history. Frankenstein also shows the vulnerability of human society to the, often bloody, products of science. Society passively lets the scientist concoct and it seems impotent against the monster’s depravities. Absent from the myth is any institutional counterforce. There is no Inquisition or Royal Society to control the scientist and creation.

So far, so good. The absence of technology’s future in LTSS can be located in LTSS’s grounding in the Frankenstein narrative. The point has been made by contributors that technology is monstrous (potential for great good and also great harm), and that scientists (or more sophisticatedly technoscientific institutions of late capitalism) are structurally blind to the wider contexts and implications of their creations. This means that if society is not to remain passive to technological changes (if it is to harness the monster for good not harm) then society requires a champion. It is here that I argue LTSS introduces a supplement into the Frankenstein myth. It brings in that institutional counterforce that was so lacking in the novel – law is affirmed as a saving power.

However, as I note in my paper this supplement is ironic. LTSS’s championing of law is as a technical discourse. The assessment of law becomes a comparison of techniques. This is LTSS great strength over the banal (and hysterical) doctrinal law and technology literature. While that literature assesses the technical competencies of law from within a narrow legal frame of analogies, LTSS as I noted in the last entry, places this assessment into a social scientific frame of empirical evidence and assessment. Given the priority of social science in pragmatics of policy formation, LTSS therefore, takes it technical role of advising public policy seriously. LTSS wants to advise on technology’s “regulation.” Art in his post, and earlier papers, has suggested, tantalizingly, that “law is technology.” I would like to suggest that he is more right then he imagines, for the guiding reason behind LTSS (and doctrinal law and technology scholarship) is affirmation that law is a technique for public policy outcomes.

In other words my cheeky suggestion that the contributors had not articulated their concept of law was a ruse. Like scientists in a lab who do not articulate their account of science but, instead their conceptions of science emerge from their doing science, LTSS did not articulate its account of law, for the simple reason that it was clear that in the doing of LTSS the conception of law on show was law as technology.

This, I hope can be appreciate, is thoroughly ironic. The invocation of law to save society involves the re-inscription of Frankenstein with the lawyer analyst as technician and the law as the monster. In doing so it is suggested that the lawyer analyst is blind to social context of her creation and the creation possesses monstrous ambiguity.

I can readily appreciate two responses to this ironic realization. The first response is again the “so what?” In which I want to sidestep through reminding of Frank’s justification for theory as revealing unacknowledged assumptions. The second response might be to criticize my hyperbole in that my suggestion that law is technology, and possibly subject to the same anxieties that surround technology, is extreme categorization that obliterates questions of degree. That if law is technology, then it is a beast that has long been domesticated, and like the motor vehicle, is familiar. This ignores a salient truth; just because the motor vehicle is familiar it should not be excused from constantly killing and maiming us humans; and just because the techniques of law are familiar it does not exempt a questioning theory of law and technology to ask the question what it might mean that law is technology?

In the following post I wish to present a working through of law as technology, and in so doing reinvest assessments of legal techniques with monstrous violence.
Image. A cartoon regarding "A Galvanised Corpse" from 1832, from Library of Congress, Prints & Photographs Division. Galvanising refers to the research from the 1790s by Italian physician Luigi Galvani examining the effect of electricity on frogs legs. Mary Shelley claimed Galvani's work inspired Frankenstein.


Blogger Lyria Bennett Moses said...

Technologies are varied - some are indeed monstrous, potentially harmful and all that. But, I still think I am missing the "so what" from law is a technology. You still need to get into the detail (will a particular legal regulation / approach cause harm, is it potentially monstrous)?

Take Gaia's work on technological diffusion characteristics and the protection of norms such as privacy. Her solution involves suggesting that legal regulation is more important/urgent in some technological contexts than in others. To critique this, it is not enough to suggest that law is technology and that THEREFORE the regulation she proposes might cause some nightmare scenario. You need to get into the detail - in the contexts she discusses, what harm would law cause?

Similarly, my own work. I set out a scheme for understanding the ways in which technology poses challenges for law, and discuss various "solutions" - which include some policy recommendations. I might be wrong. Following my rational-seeming argument might lead to all kinds of chaos, destruction and lost lives. But you would need first to address my arguments directly. It is not enough to say "law is technology and, like Frankenstein, capable of great harm."

In other words, I agree we need to evaluate our policy recommendations mindful of the fact that they might cause harm. I also agree that the Frankenstein metaphor can be useful - it highlights that the harm caused by law as technology can be compared to the harm caused by applied science technologies. We need to be careful that we do not create a new monster in order to control Frankenstein. That observation is important. But I am not sure whether it changes the nature of (other) theorizing.

2/12/2007 11:45 AM  
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10/18/2011 10:53 AM  
Anonymous FTI said...

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11/06/2014 5:43 AM  

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