Distinguishing law and changes in information

Another way in which a theory of law and technological change could be broadened would be to include all changes in social knowledge. Knowing how to achieve particular ends through technological means is but one type of knowledge. There are various other forms of social knowledge, including information about current events and scientific knowledge. Like technology, social knowledge evolves over time as new things are learnt and outdated or erroneous notions are discarded. It is therefore arguable that limiting the scope of inquiry to changes in one type of knowledge (being knowledge of means to extend human capability) is arbitrarily narrow.

Just as technological change can render legal rules uncertain, over-inclusive, under-inclusive or obsolete, so can acquiring new information. In particular, rules may become obsolete once it is discovered that they were based on assumptions since proved false. It is easy to imagine ordinary instructions that one might wish to retract had one known all the facts. Some familiar ones include: “drop everything and come here” addressed to a person holding a baby in the bath, “shut the door” spoken by a superior who did not see the CEO approaching, and “buy a packet of curry powder” where the speaker did not realize that the price had recently escalated significantly. These examples suggest that there is nothing special about the legal problems that arise as a result of technological change - all changes in information available to lawmakers may create incentives for law reform.

But the everyday nature of the examples obscures an important difference between rules based on outdated technology and rules based on partial ignorance of circumstances. In formulating legal rules, legislators and administrators have the option to devote significant resources to ascertaining the truth of the facts on which the new rules are based. While they might devote similar resources to futurist predictions of technological change, such efforts are unlikely to prove fruitful. Therefore, technological change is likely to have a more significant impact on law than acquiring additional information on the current state of affairs. If Congress were to pass a law based on a mistake as to present facts, obviously that law could be criticized accordingly, but the problems are not on the same scale. They also give rise to a different type of critique - lawmakers that misconstrue the facts might be thought careless, but lawmakers are not criticized for failing to anticipate technological change, only for failing to respond promptly after the change has taken place.

I’ll move onto scientific change next post.