Friday, February 13, 2009

Stories of Autonomy, Technology and Law

I’ll address the most important topic raised in Art’s introduction. Re: Galactica. I am planning to do some more writing on Galactica later in the year and that might answer the question whether I am ‘enjoying’ Season 4. The enjoyment has morphed into a compulsion...

On the matters at hand.

I am very glad that Art has suggested this topic for this year’s blog as it has allowed me to untangle some ideas that have lay undisturbed by my past thinking about law and technology.

Like Jennifer what follows are new ideas (at least for me) – I have welcomed this as a forum for expressing new thoughts and I would be very keen to engage in a dialogue. It also means that I do not have the solidity of a worked paper behind these thoughts, please forgive the roughness of ideas and expression.

In recent years due to teaching and editing responsibilities I have found myself to be becoming more and more a legal philosopher. This, I think, is a good discipline to bring to a discussion on human autonomy, technology and law. My argument in what follows is that specific engagements with law and technology tend to be scripted by stories that posit a fundamental relationship between human autonomy, technology and law. There is direction to my narrative. I examine three of these stories, the ‘technology’ story, the ‘legal’ story and the ‘autonomy’ story; concluding with the autonomy story as exposing the truth of the task at hand.

The Technology Story

The technology story begins with the populist definition of human as tool user. The origins of this story run deep in Western culture but a specific beginning lies in the paleonanthropological theorising of the nineteenth and early twentieth centuries, that the evolution of human, the specific chance relationship that accelerated natural selection, was tool-use by distant apelike ancestors. It was claimed that the chipping of flint and the domestication of fire set the cortex alight. Tool use facilitated greater resource utilisation which in turn gave stimulus to brain development which in turn lead to greater creativity and experimentation in tool use; and very rapidly (in evolutionary time), our hairy ancestors moved from flints and skins to not so hairy modern humans with Blackberries in Armani. In this story what distinguished modern humans was this tool use. The sub-text is autonomy. Tools and brain freed humans from nature. In Bernard Stiegler’s nice phrase from Technics and Time technology allowed ‘…the pursuit of the evolution of the living by other means than life. (Stiegler (1998): 135).’ In this story technology fundamentally relates to autonomy.

What this story about technology and human autonomy does not tell is law. Indeed, law’s absence telling. As a fundamental myth, the tool-using-free human (TUFH?), is before law. Law emerges later, as a second order consequence, a supplement laid over the top of humanity’s essential nature.

The state of debate in contemporary paleonanthropology is that this story, as an account of the evolution of Homo Sapiens, is problematic and simplistic. Further, deep ecologists have been keen to point out since the 1970s that human’s share the planet with other tool using species and a claim of superiority on the basis of tool use is anthropocentric. But it is a good story, a modern version of the myth in Plato’s Protagoras of Epimetheus, Prometheus and the gifts of traits, and is an entrenched, and often repeated, narrative within Western culture.

The essential elements of this story are repeated again and again in the assumption of techno-determinism. It is the meta-form that scripts the arguments of those that enthusiastically embrace technological change as a good in itself. It is also the narrative that animates the legal mind when it turns causally to the question of technology and thinks that law must ‘catch-up’ or that law is ‘marching behind and limping.’ In these phrases technology is placed at the core of what it means to be human, while law is located at the periphery. Its influence can also be seen in the ‘can’t’ or ‘shouldn’t’ regulate technological change arguments. Being technological is regarded as the essence of humanity and artificial attempts to regulate the ever flowering of this being will either fail (can’t) or end in debasement and corruption (shouldn’t).

The Legal Story

The legal story mixes the relationship of human autonomy, technology and law according to a different recipe. This story comes down to us from the social contract tradition of early modernity. In this story the roles of law and technology and reversed. The story goes that humans lived wretched (Hobbes) or simple (Locke) lives in the state of nature; living by passions with only the spark of reason to distinguish humans from animals. This state was the state of complete freedom. However, that spark of reason eventually lead to the realisation that a compact between humans could secure a more peaceful (Hobbes) or propertied (Locke) existence. The social contract was formed and, bingo, government, law, economy, society, global financial crisis, followed. In the social contract some freedoms were sacrificed to preserve others. Here law is fundamentally tied to human freedom at two levels; first it is the legal form of a contract that binds the natural human and second, freedom, reason and covenant combine to provide a justification for the posited legal system. One of the benefits, to use Hobbes phrase, of the ‘sovereign’s peace’, was technology. As humans were no-longer in the ‘war of all against all’ (Hobbes) or worrying about where the next meal would come from (Locke) they could get on with learning about the world and making use of that knowledge. Hence technology emerges as a second order consequence.

Like the technology story, this story permeates Western culture. It remains law’s formal story of origin and so ingrained is it in the modern jurisprudence that explanations of legal orders that do not include such concepts as nature, reason, freedom, sovereign, contract, rights, seem irrelevant. It shows its influence in law and technology scholarship. Fukuyama’s clarion call for law to ‘save’ humanity from biotechnology is an example. Driving Fukuyama’s argument is the social contract vision of the human as a reasoning being who is biologically vulnerable and this combination, on which the Western apparatus for the expression of freedom (government and market) has been constructed, is under threat by technology. The core needs to, and it is legitimate for it to, secure itself against change. In this account technology as a second order consequence is a threat but also a threat that can be met. There is a fundamental confidence in legal mastery of technology that is absence in the technology story.

To recap. The technology story posits human autonomy and technology as essential, with law a second order consequence. In the alternative the legal story narrates human autonomy and law as essential, with technology a second order consequence. My argument has been that much of the scholarship on law and technology emanates (that is draws fundamental structure) from either of these narratives (and sometimes, in the guise of practical-ness – both). What has happened in my telling of these stories has been a muffling of ‘autonomy.’ I moved from autonomy to freedom, and as treating these two words as synonyms is common I should have got away with it. But perhaps I shouldn’t have. This opens to the autonomy story.


Blogger Arthur Cockfield said...

Kieran: I agree that both narratives--or some combination of the two--inform much current thinking about law and technology. Perhaps one of the main goals of research in this area will be to tease out in a more critical manner whether the stories hold up in the real world. As Gaia reminded us in her recent comment, whether law facilitates technological progress as a mere passive observer or whether law determines the path of technology is an empirical question that remains unresolved (and presumably may never be resolved). But the stories at least get us to question what sort of process is taking place, and what is the role of law within this process.

As I read your post, I was thinking whether there were any other possible stories other than the ones you've offered (or at least ones that are not derivations of these stories)? The best I could come up with is Cormac McCarthy's recent novel The Road. In this book, a father and son wander down a road within a post-apocalyptic future where, contrary to your stories, technology does not lead to human autonomy or human progress (we don't know what caused the apocalypse, it could be an environmental disaster, a nuclear holocaust or maybe the wrath of God). There are very few tools left--people sometimes fight with bows and arrows, a man's shoes are taken away, which amounts to a death sentence due to the freezing chill everywhere.

Nor does it appear that a social contract will arise from this return to the state of nature: lawless abounds, and the few honest survivors left are hunted.

Is McCarthy telling us that, by stripping away our vaunted technologies as well as our social institutions (the two inextricably intertwined?) we are finally reduced back to our essential humanity? What's left is mainly awful (a world where trust has been destroyed and where people eat each other to survive) yet McCarthy also seems to hold out hope for a better day, at least at the end when [spoiler alert!] the boy is saved by a seemingly friendly family after his dad passes away.

In this story, humans arguably act in a truly autonomous manner after we strip away both technology and law. But this glimpse of the potential for true human agency seems hardly comforting.

2/14/2009 3:20 PM  
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2/15/2009 4:25 AM  
Blogger Kieran Tranter said...

Dear Art

I really appreciate your comments on a third way and use of McCarthy. These gesture towards part 2 of my blog. What I find interesting in your choice of post-apocalypse sci-fi is how Hobbessian that genre’s tropes are. Ever since Lord of the Flies the vision of humanity encoded by the genre has been Hobbes. It says - strip away the civilising veneer of civilisation (government and technology) humans are evil animals. Post-apocalypse either tells a warning not to threaten civilisation or else anarchy; for example the fabulous Australian films Mad Max (1979) and Mad Max II (1981 (ignoring the Tina Turner, Hollywood financed Mad Max III). It also contains the ‘future history’ subgenre, which maps the course of human affairs usually after an apocalyptic event. The definitional example of this sub-genre is Walter Miller’s fabulous A Canticle for Leibowitz (1959) where civilisation cyclically rebuilds itself through new contracts and relics after nuclear holocausts. In straight post-apocalypse and the future-history subgenre we tell ourselves the ‘truth’ of the social contract. However, it is only a story, although one that seemed to be very real in face of the horrors of the twentieth century.

In the alternative there is feminist sci-fi, where often the apocalypse cleared away male aggression, leaving spontaneous, peaceful communities of women. The social contract and with it fear of the state of nature evaporates along with the Y chromosome. Here the social contract and the assumptions of freedom, violence and agreement are replaced by assumptions of caring, community and responsibility. This animates decades of feminist critique of the social contract thought in political and legal theory (which often drew upon feminist sci-fi for inspiration). In much feminist science fiction technology is present as support in the human projects of caring, community and responsibility; it is not the hard, dangerous, invasive and potentially destructive technologies of traditional sci-fi.

What we have are two radically different founding narratives to autonomy, technology and law. My suggestion is so far law and technology scholarship has only been founded on one. This ends with a fabulous question what would a feminist law and technology enterprise look like?

2/15/2009 8:16 PM  
Blogger Jennifer Chandler said...

Hi Kieran - I was wondering about separating the stories of law and technology, and the idea that one is a second-order consequence of the other.

What if law IS a technology? Legal systems certainly fit Ellul's definition of technique, and even Don Ihde's narrower definition that includes methods that have some physical artifact involved. I've always thought that legal systems, with their language, rules, institutions and artifacts are complex social technologies. This is why I think it is odd to talk about law regulating technology. It is a reflexive statement. Can we look at one phenomenon bringing about the other?

2/16/2009 1:44 PM  
Blogger Arthur Cockfield said...

Kieran: I'd also add Well's Time Machine (1895) as a good example of the post-apocalyptic veneer-stripping genre(remember those creepy morlocks lurking beneath the surface at the end of time?).

While hardly a feminist parable (in fact, McCarthy is sometimes accused of being preoccupied with male-oriented themes), The Road is interesting because it focuses on the relationship between parent and child.

After law and technology is stripped away from us, what still remains, McCarthy seems to be suggesting, is the love between a parent and his/her child. Only when we are fully returned to the state of nature the potential for true human autonomy is finally revealed: at one point in the novel the (nameless) father says to his son something to the effect of 'I've been ordained by God to care for you, and I'll kill anything that touches you.'

Yet this is presented as a choice the father makes to sacrifice himself and not some biological imperative. The mother, on the other hand, commits suicide in the face of the unrelenting horror of the apocalypse.

Maybe it's just McCarthy's way of dealing with mother issues ;)

2/16/2009 3:01 PM  
Blogger Kieran Tranter said...

Jennifer – Many thanks for your comment. I am a firm believer in approaching thinking about law and technology should embrace a concept of law, to use Latour’s fabulous phrase as ‘modest technology.’ Indeed, clearing the way for analysis that treats law and technology equally (indeed, the same) was the aim of my posts.

However, there is a concern when we as jurists talk of law as technology. The conceiving of modern posited law as ‘technology’ has a heritage and that heritage is Carl Schmitt. Schmitt in his clear polemics exposes exactly what it means that law (and indeed sovereignty) has become technological. It means it is pure power. Now Schmitt is dangerous. He is dangerous because if he is right that there are no constraints in law, law can do anything, and rights, constitutions, liberties are not the bulwark that liberals think that they are. Schmitt is more dangerous because embedded in his work, as teased out by Agamban, is law as pure power is based on death. Law works because it can kill. Further he is dangerous because his life story as conservative legal theorist in Weimar to Crown Jurist of the Nazis, shows the dangers of treating law as technology.

2/16/2009 8:27 PM  
Blogger Kieran Tranter said...

Art – so glad that you mentioned the Well’s Time Machine. It is important as it provides a key image in the social contract story. This is what I wrote in what I hope is a forthcoming paper:

Concerning the first truism, human vulnerability, the fact that humans can kill each other, Hart explains:
Yet though this is a truism it is not necessarily true; for things might have been, and might one day be otherwise. There are species of animals whose physical structure (including exoskeletons or a carapace) renders them virtually immune from attack by other members of their species…If men were to lose their vulnerability to each other there would vanish one obvious reason for the most characteristic provision of law and morals: Thou shalt not kill. Hart (1961), 190.
Hart is deploying heavy imagery; biology, time and human nature tumbled together. Inclusion of the phrases “one day be otherwise” and “if men lose their vulnerability” references Darwinian evolution; the intersection of biology, time and natural section. Hart did not need to raise the point that the current manifestation of human physiognomy, when seen in biological time, is only a transient moment comprised of shifting attributes. It in fact complicates his arguments. If he wanted to distance his claims from transcendent statements, he could have scaled his time to recorded history and made the claim that “as long as it is remembered.” This referencing of evolution is problematic. So to is Hart’s recourse to hard defensive armour, exoskeletons and carapace; Hart could have chosen species, like garden worms for example, that possess no obvious offensive weapons that could cause harm to other members of the species. Or chosen sentient animals like corals that do not have the animation to exchange violent blows, or in a more radical challenge to the liberal tradition of analogising human and animal nature, discussed entities composed of collectives of singular cell organisms, where the individuals depend on the collective for survival. The choice of defensive exoskeletons and carapaces appears random; maybe manifesting a deep desire for a thicker hide! However, this running together of evolution, human nature and hard shells has a literary pedigree.

The concluding chapter of H. G. Well’s The Time Machine has the traveller jumping into the far future. Within the book’s narrative, of how late Victorian social divisions became etched in the evolutionary direction of humanity, the traveller faces what could be humanity’s descendent:
I saw that, quiet near, what I had taken to be a reddish mass of rock was moving slowly towards me. Then I saw the thing was really a monstrous crab-like creature. Can you imagine a crab as large as yonder table, with its many legs moving slowly and uncertainly…(Wells (1895/1995), 73)
This is the image referenced by Hart in his use of evolution and exoskeletons: Wells even describes the carapace, “Its back was corrugated and ornamented with ungainly bosses, and a greenish incrustation blotched it here and there.” (Wells (1895/1995), 74.

The point is that it is the biological ‘fact’ of intraspecies violence among humans that grounds social contract theorising.

On familial ties and empathy – these are not strong in Hobbes. Indeed, Hobbes is not prepared to believe that family ties restrain freedom in the state of nature; and Freud’s version of the social contract in Totem and Taboo has the social contract arising from the sexually frustrated sons coming together to murder the father. What we are seeing in stories like McCarthy’s are attempts to tell more positive stories about fathers and families. The issue is whether such stories can escape the patriarchal constraints of the social contract tradition and provide a basis for re-conceiving law and technology research.

2/16/2009 8:52 PM  
Blogger woodbomb said...

Is the US jury "system" a technological system? (If this idea appeals to you, see the work of Thomas P. Hughes, a historian of technology). I am interested in work within the legal realm that addresses (or might address) the initial question.

4/15/2009 10:32 AM  
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