Distinguishing law and behavioral change

As noted in my previous post, technological change has an impact on existing legal rules - enhancing uncertainty, making them over-inclusive or under-inclusiveness, and rendering them obsolete. Although changes in what people do, as well as changes in their capacity, have the potential to raise these issues, most social change has less of an impact on law than technological change. My goal in this post is to explain the benefits of developing a theory of law and technological change rather than a more general theory of law and behavioural change.

Technological change is usually more difficult to foresee at the time a law is drafted. Of course, a lawmaker might choose to ignore future possibilities or seek to suppress them; for example, a lawmaker might wish to restrict work on Sundays despite the fact that religious diversity in their society is increasing. A lawmaker might not have the time to craft laws that can deal with every hypothetical. Nevertheless, a lawmaker is less likely to be caught by surprise by mere changes in behavior. The fact that most behavioral change is gradual, and is often subject to a counter-trend, means that debates around law and social change can be distinguished from the reaction to technological change.

The special relationship between legal problems and technological change can be seen by examining the timing of legal problems arising from a combination of technological and behavioral change. Changes in techniques of reproduction (such as artificial insemination or in vitro fertilization) will usually be faster than related changes in social attitudes towards reproduction. Laws may be needed to control a type of activity (such as human reproductive cloning) well before it becomes accepted socially, if it ever does. Other legal problems, such as uncertainty and poor targeting, are likely to affect early users of a new technology. In the context of in vitro fertilization, the first case considering the consequences of harming an embryo arose from conduct in 1973, about five years before the first child conceived in vitro was born. Early cases dealing with the nature of railroads within the law of property and contract arose well before railroads became a regular means of transporting persons and goods. The potential for legal problems from technological change comes before full social acceptance and diffusion of the technology, with resultant social impacts. Of course, once a technology becomes widely accepted and used, any legal problems associated with that technology will become more urgent.

The fact that technological change poses special problems is reflected in metaphors of the law’s failure to keep up technology. While technological change is not as sudden as might be imagined (it takes time to move a new product or process from development to invention to innovation to dissemination), it is usually speedier than social change and thus prompts more urgent calls for the law to “catch up.” Judges usually feel more comfortable updating the law in light of technological change as compared to social change, perhaps because it is more easily perceived as objective. While some social changes, such as an outbreak of war or disease, can be as sudden as technological change, they raise very different (and quite specific) legal issues. These differences make it worthwhile to consider legal responses to technological change separately from the broader topic of legal responses to behavioral change.