Sunday, February 15, 2009

Stories of Autonomy, Technology and Law II

The Autonomy Story

Freedom has exercised particular attraction to the modern imagination. The technology story saw the tool using human as freeing humanity from the constraints of a fickle and oppressive nature. The legal story saw contract and government as freeing human from too much freedom in the state of nature. Freedom is defined in relation as a freedom from. The concept of will that Nietzsche exalted (as a rejection of the orthodoxy that ‘freedom’ had become) turns out, on a simplistic analysis, to be ‘freedom from’ on steroids. Freedom from or the pure exercise of will has a tinge of irresponsibility about it; as first year law students demonstrate when they are allowed to play, under close supervision with negative rights in tutorials (I am free to swing my fist to within 1/1000 of an inch of your nose). Autonomy can suggest something else; and that something else can be seen in the autonomy story of autonomy, technology and law.

The autonomy story emerges from critiques of both the technological and the legal story. One of the first disciplines to question the technological vision of humanity as the freed being of brain and tool was technology studies. I am referring to Lewis Mumford’s canonical two part Myth of the Machine (1966). In it, drawing upon the breath of human diversity as a catalogued by mid-twentieth century cultural anthropology, Mumford argued that it was not tool use that defined humans, but language and culture, and the evolution of our mental hardware was stimulated by increasing sophistication in usage of signs and symbols. Human freedom from nature was not because of tools but because of culture that allowed more effective domination – technology was the material manifestation of culture; not the substratum on which the superstructure of culture was erected.

This meant that for Mumford culture - law, morals, myths and technology – is what liberated humans. Notice that unlike the other stories there are no second order consequences. Law and technology as culture are tied to human freedom. Mumford’s project was clear – that modern accounts of technology that posited technology as outside of human control were false and ‘placed our whole civilisation in a state of perilous unbalance: all the more because we have cast away at this critical moment, as an affront to our rationality, man’s earliest forms of moral discipline and self-control’ (Mumford 1966: 52). Mumford regarded law (moral discipline and self-control) and technology as elements from a cultural whole. The need for law, for discipline and control, of technology was self-evident.

There is the spectre of the noble savage that haunts Mumford’s work; and a sort of negative ethnocentrism, that became obvious in the appropriate technology movement of the 1970s that his writing helped found, in favour of indigenous society against the ‘unbalanced’ West and all its works. However, this extremism is not core to the story that Mumford tells. Indeed, what this cultural re-reading of the technological story posit is a relation between law and technology that does not reify technology as either essentially human, and by location ‘good’ (as in the technology story), nor unessentially secondary and by location ‘bad’ (as in the legal story). What Mumford’s story allowed is a freedom to choose, but in that freedom hid responsibility. Humans, through culture are the creators of their own destiny, and law and technology are equal partners in this self-creation.

This still talks about freedom, but it is a qualified freedom. Not a freedom from but a freedom to. It seems that a vision of human in the world that involves culture and self-creation also includes a concept of responsibility. It is this freedom to and normative demand of responsibility that is captured by autonomy. This can be glimpsed in the critique of the legal story.

A fundamental challenge to the legal story of autonomy, technology and law comes, like Mumford’s critique of the technology story, from the social sciences. As early as thelawyer turned sociologist Max Weber began the task of cataloguing legal systems it became increasingly clear that social contract narratives failed to account for what it meant to live with a fully rationalised legal system, modern executive government and industrial capitalism. In this mass urban context of the machine (it must be remembered that ‘technology’ only become common parlance in the 1950s) concepts like nature, reason, freedom, sovereign, contract, rights had difficulty being recognized by identifiable ‘things.’ The US realists of the 1920 and 1930 tried to grasp this, but were hampered by their common law training, law school context and remained, in the main, fixated on judicial decision-making. It is the work of Michel Foucault that fundamentally challenges the legal story of autonomy, technology and law. Instead, of postulating a natural human and a state of nature, Foucault presents a plastic human constructed by techniques. Human subjectivity (that place were one feels free or otherwise) was not a private zone of autonomy that survived and was to be guaranteed by the social contract, but a product of context. Foucault talks about the cultural processes in modernity through which humans are made: The processes that Mumford glosses with his broad brush stokes. These processes are the discourses of the self (medical, sexual, legal) and the mundane training, through routine, reports and discipline by panoptic institutions (the family, schools, hospitals, army, prisons, churches, and especially universities) that construct the ‘I’ of modern life. There is not the binary sovereign-subject but ever-changing and ever- to-be negotiated networks of power relations. Here ‘law’ is more properly experienced as mores, authority, disciplines and punishments, and ‘technology’ is more properly experienced as techniques for self control and for power over others. Talk of autonomy is a relative and negotiated affair that can be represented spatially as zones where the reflective possibility of choice is possible. However, that is not freedom from; the range of choices are always limited and circumscribed.

In Foucault’s story the emphasis is on how the individual as a self negotiates the everyday; through using techniques and in being subjected to techniques, and in so doing changing. I am suggesting that, notwithstanding their obvious differences that Foucault fits within Mumford’s very grand account. Mumford on the primacy of culture, and with that humankind’s responsibility for self-creation, while Foucault explains the processes, at the level of the individual, through which an individual is made to be responsible for the self.

Now this autonomy story might seem quite removed from the mainstream of law and technology scholarship. However, I would submit that the more complex assessments of technology that are being voiced in this forum owe there formative moment to a realisation that it is human doing with technology, that is the cultural registry, that is the frame from which law and technology needs to be considered. Further, the existence of this forum, with all these signs and symbols (Mumford would be proud, and ‘signs and symbols’ sounds more retro-cool than the po-mo ‘discourse’) exercising our autonomy to reflect on our freedom to, and our responsible for the world that we make through technology and law.

In short, and this is the punch line of my argument, we tell stories. I continually and on purpose used the noun ‘story’ and verbs like ‘talk’and ‘telling’ throughout. What I have endeavoured to show has been how law and technology thinking replicates and transmits fundamental narratives about autonomy, technology and law, even in the guise of practicality. What I also have suggested in the conclusion with the autonomy story is a realisation that these stories, embedded and persuasive that they are, are cultural and we have responsibility for them. This is why my research continues to circle back to science fiction (even when I feel I should grow up, get grants and do practical law and technology research). Putting aside the mountains of chaff within the opus of science fiction there are some grains - some concepts, characters, plots, narratives -that are resources to write alternative stories about the relation between humans, technology and law.


Blogger Lyria Bennett Moses said...

Thanks Kieran for your very interesting post. Does this mean that theories of law and technology are necessarily culturally embedded, being based on particular narratives of law and technology? Might one then find differences between the scholarship (to the extent it exists) in different countries? Even, say, between Australia, Canada and the US (which I would argue have slightly different "stories" about law and technology)?

2/15/2009 11:57 PM  
Blogger Kieran Tranter said...

Lyria – this is one of the directions I am suggestion should be explored. National, even region differences it would be expected would influence legal responses to technological change. But I would add a caveat.

I am currently analysing the opus that is Western legal scholarship that emerges in the wake of technological crisis events; specific Sputnik, Louise Brown, the Net, Dolly the Sheep, nanotechnology and Second Life. In this I identify a majority story of the call for positive law to secure public policy goals. The writing across those 50 years and across US, Canada, UK, Aust, South Africa and NZ (and when I can find it Europe) is remarkably consistent in how technology and law are conceived and framed (a hybrid of the technology and legal stories that I write about in my blog.) The technology changes, the era changes but the analysis stays the same. Now this is not the case when one looks at the actual response. Take for example IVF. As you have written about while the US was still thinking about how to respond to IVF, by 1985-1986 Australia had had a series of inquiries and regulative legislation; reflecting I think Australia’s Benthamite heritage of rational and dominate executive government and a cultural assumption that government can and should regulate. I saw similar accounts when looking at the first motor vehicle legislation in Australia compared to the UK. While the UK was concerned with police powers and class (think of the 1908 Wind in the Willows and Mr Toad adventures with automobiles), Australia, specifically the state of Victoria, legislated what was considered the most modern form of regulation so to facilitate a motorised future. Again the cultural context of Australia as a ‘new’ and ‘modern’ society influenced how law responded.

What I am suggestion in my blog is clearing the way for law and technology scholarship to start to do ask and explore these type of more sophisticated research questons.

2/16/2009 8:11 PM  
Blogger Arthur Cockfield said...

In response to Lyria's question, my own view is that law and tech analysis has the same potential to illuminate the law as other scholarly efforts such as law and economics. While recognizing that economic institutions and cultural views of the market vary from place to place, law and economics still maintains that individuals respond as rational utility maximizers to economic choices and hence responses to legal rules and policies can be modeled to test their efficacy (of course there are ongoing challenges to all of this!).

Law and technology could similarly try to generate general principles along the lines of social science consequential analysis such as: legal rule + technology = individual or group behavior = policy outcome. These models generally assume causality is iterative so that the outcomes of one iteration influence the subsequent interaction between law and technology.

All of the usual problems associated with somehow disentangling law from technology (or economic or social institutions for that matter) would be present in this sort of effort, but there may be ways to generate consensus around general principles, which in turn would promote desired policy outcomes.

So the stories from Foucault, Weber, Ellul and all the rest could help us to form these general principles. Lyria's writings that deal with 'recurring dilemmas' the law faces with respect to technology change suggests that she agrees! But we may have to wait until her posts to find out ...

2/16/2009 8:37 PM  

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