From Theory to Method

In this, my final post, I would like to move from theory to method.

So far I have argued for the following propositions.

• This forum has set out Law, Technology and Society Studies (LTSS) an interdisciplinary project that uses social scientific material to generate some specific generalizations about law and technology. The approach has been inductive, moving from ‘facts’ to ‘theory.’ This is important and needed research capable of generating the type of material that can guide technology policy and law making.
• However, LTSS is not necessary a project of Law and Technology Theory (LaTT). LaTT, I suggest, is deductive, it asks theoretical questions of LTSS (and doctrinal law and technology scholarship) aiming to undercover the presupposed assumptions that animate those two practical projects.
• To this end I offered a start on LaTT. My starting point was suggesting that LTSS articulated a theory of technology and law. Technology is conceived as external to human society and amoral, requiring law to control and guide it; and in this instrumental law, law is revealed as technology.
• I then examined “Law as Technology” from two theoretical traditions. From legal theory the reduction of law to technology discloses reconsideration of sovereignty and the need to appreciate that sovereignty ultimately is illiberal, and rests on the potential destruction of the human body. From the perspective of law and technology what this reveals is a discourse grounded on law as technology brings no residual, resistive values, through which to restrain law. Such values need to be brought in from outside.
• I then suggested that the possibility of an ‘outside’ is limited if the statement law as technology is considered from technological theory. Heidegger’s founding questioning of technology locates technology as the core structure of modern existence, meaning that to be human in this epoch is to be fundamentally technological. This means that human thought and action orders humanity and the world into “standing reserve” capable of being dissected, ordered and rearranged. Heidegger’s ontological approach to technology has been highly influential in technology studies where key thinkers share his ontological approach to technology and ultimately a pessimistic orientation towards whether technology can be “overcome” in favor, or in a return to, more authentic human being. The point was that law as technology seemingly closes the possibility for a non-technological supplement to control law as technology sovereign violence.
• However, I suggested that there is an alternative strand within technology studies, one that accepts Heidegger’s fundamental propositions, but constructs an alternative account of what it might mean to live within a technologically structured ontology. I argued that Haraway’s polemics of cyborgs and informatics of domination might assist with development of LTSS that avoids the theoretical limitations of law as technology.

Haraway’s concern is with charting the complex relations of culture, nature, knowledge and power of the here-and-now, as the basis for political engagement and ethical conduct. Haraway’s project suggests two methods for doing this.

The first draws upon Haraway’s desire that “[a]ny interesting being in technoscience, such as a textbook, molecule, equation…can – often should – be teased open to show the sticky economic, technical, political, organic, historical, mythic and textual threads that make up its tissues.” (Haraway Modest Witness 1997: 68). While Haraway criticizes him, this seems similar to the type of sociological and historical studies by Bruno Latour, in which complex relations between “agents” - scientists, engineers, corporate leaders, government officers, political, social and cultural events and concerns of the time, and the very machines that scientists and engineers use -interrelate in any technoscientific endeavor. This body of research suggests an approach to law and technology that undertakes detailed examinations of the networks at play behind, not just technological change, but legal responses to technological change.

Peter suggested that historical study of law and technology was critical. My suggestion augments this by arguing that such research needs to engage in the minute details and interactions between technologies and law. This might mean that the lawyer scholar needs to undertake primary research, as existing research often overlooks the complexities of law-technology relations. In my study of the making of a pre-WWI Australian motor vehicle Act, I found that existing research failed to acknowledge the sophistication of the legislation, nor the complex interactions that led to its passing in 1909. In returning to the primary sources (correspondence held by the automobile club, correspondence held in the government archives, parliamentary debates, case law, and newspaper and magazines from the period) I found that the law was not as a simplistic reaction to the motor vehicle as cultural historians thought, but was the outcome of public anxiety about motoring, the personality of specific politicians, consideration of the effectiveness of English laws, lobbying by the motoring club, and also was a manifestation of a public culture that celebrated technology as progress, dreamed of mass automotive transportation and regarded regulative legislation as the best, most modern form of governing (This research has been published in (2005) 29 Melbourne University Law Review 843 and is available through Hein-Online). My suggesting is that close historical analysis will lead to greater sophistication regarding how law and technology interact within the West avoiding some of the pitfalls of just regarding law as a technology.

My second suggestion is to look at the everyday of law and technology. Rarely does technology impose itself as Heidegger’s “Enframing”, and rarely does law impose itself as abstract rules. Instead, technology and law are experienced, often in the mundane and everyday. Drawing upon Latour’s later work it can be said that technological objects and humans jointly form a culture which structures particular forms of relationships (between objects and objects, objects and humans, humans and humans), and within which some relationships possess particular characteristics that allow them to be regarded as profane, ethical or legal. My suggesting is that LTSS should examine the contours of contemporary culture. Implicit in this approach is the realization that in the messy complexities of everyday life in the West there is a more sophisticated “theorizing” of technology then the ontological strand within technology studies recognizes.

Within technology studies this respect for contemporary culture is recognized in the link it forges with science fiction studies. Haraway’s adoption of the cyborg is a key moment in the cross-fertilization of these two disciplines. This has a direct legal parallel in the rapidly expanding field of law and literature which is increasingly concerned with the “culture of legality” manifest in popular texts. Part of this has been the discovery of science fiction by legal scholars. What remains to be explored is science fiction as a discourse on law and technology. As identified in the circulation of the Frankenstein myth within law and technology scholarship, metaphors with fictitious origins structure legal accounts of technology. Also many law and technology authors refer to popular science fiction texts when trying to establish the particular technological anxiety that motivates their writing. Witness the continual reference to Brave New World, Frankenstein, Boys from Brazil, Jurassic Park in scholarship on human cloning. In taking science fiction seriously law and technology acts reflexively on its own discursive practices, and in doing so can access a wider repertoire of metaphors and narratives through which to think about law and technology.

This is an approach to studying law and technology that I have attempted to do in my paper forthcoming in (2007) 19(1) Law and Literature (due any day now). In it I argued that a specific science fiction text, the new Battlestar Galactic television series not only offers a reflection on the culture of legality post 9/11 or a reconsideration of the question of biology for progressive legal projects, but ultimate exposes the limits of the Heideggerian legacy concerning the metaphysics of technology in critical theory, and in doing so exposes legal theory’s failure to adequately engage with the technical.

My suggestion in offering these two methods to LTSS is to suggest that LaTT, through exposing the unacknowledged assumptions concerning much law and technology research, can lead to specific, engaged projects that present findings that can develop understanding of law and technology.

That is my final post. I would like to reiterate my thanks to Gaia, Frank and Jim for the opportunity to contribute. I would also like to thank the other contributors to this forum for their sharing of their ideas. I think important ground has been made in the development of more sophisticated legal accounts of technology, technological change and technology and society, and I look forward to the further development and discussions.