In the last post I concluded with the observation that LTSS embodies an understanding of law as technology. In this post I want to interrogate this claim from within two theoretical traditions; legal theory and technology theory. I want to emphasis that my purpose is not to trash LTSS in a 1970s CLS style. This is about exposing unacknowledged assumptions and in so doing suggesting direction about how to study law and technology better.
In the last post the image was Frankenstein. In this post the image is the Weimar Republic. Weimar is absolutely fundamental to thinking about LaTT. Weimar marks a particularly vivid moment when the questions of technology, society, law, order, change and humanity were to the front of the intellectual and social life. Fritz Lang’s seminal sci-fi movie Metropolis (1927) can be read as a summary of the dynamics and anxieties of the time. Weimar is the location for three theorists whose work I wish to draw upon, Carl Schmitt, Martin Heidegger and Walter Benjamin. Further, that Weimar was the cultural incubator of Nazism reveals the fundamental violence and stakes involved when mixing the heady combination of law and technology.
Within theoretical thinking about law, seeing law as technology is somewhat illicit. One of the strengths of the CLS was the critique that legal scholarship, notwithstanding claims to be apolitical, was deeply political and that politics was liberalism. Without revisiting much, liberalism postulates the limits of authority. That law fulfils a somewhat paradoxical function as the authorizer of authority and as authority’s limit. However, what lies at the heart of liberalism as a modern discourse on the state, is not the individual, but the individual’s direct opposite – Leviathan.
Claims that law is a technology to be deployed to achieve policy outcomes amounts to a particularly nomology that locates law in sovereignty. Law is conceived as a plastic power, a tool of sovereignty, indeed for some like John Austin, the relations of sovereignty to changeable law is used as the definition of sovereignty. Law lost any preexisting form that it might have possessed within legal accounts of the late middle ages. Further, the notion of the sovereign is irrational, hinted at by Hobbes’s bestial title. The sovereign’s role was to preserve, using law to do so, any rationality would amount to a limit undermining the sovereign.
These observations were made forcefully by Weimar and later Nazi legal theorists Carl Schmitt. Schmitt defined the sovereign as the entity that could declare an exception; suspending or abolishing the existing order, and decides on whatever measures to address the exception. He perceived positive law of liberal legislatures as just naked power transmuted into whatever ends. He was similarly critical of liberalism itself because it could not distinguish between values – between ends that will defend and sustain the nation, and ends that give the nation over to its enemies. In this inability to distinguish values, modern law and liberalism both manifest the “economical-technical apparatus” which was indifferent between “a silk blouse and poison gas” and characterized the age.
Schmitt’s sovereign authoritarianism is not concerned with the violence of the sovereign and plastic law. And we still living with the horrors of Nazism can not forget that talk of sovereign power through law registers on human bodies. For legal theory articulating this unacknowledged register has come through the reception of another Weimar intellectual, a corresponded with Schmitt but from a radically different political and religious tradition – Walter Benjamin. Benjamin in a short 1921 essay argued that the legal order is grounded on two violences; a violence that founds and a violence that preserves the law. The commonality of these two violences is the need for blood, and the two become indistinguishable in the modern apparatus of the police state. Giorgio Agamben has recently drew upon Schmitt, Benjamin and the Nazi concentration camp, to argue that the camp was not just an evil but rather its manifestation was the “perfection” of the tensions of law and sovereignty in the West. The camp makes explicit that the ultimate fact of sovereignty is violent power over bare life, the very physical bodies of subjects.
So law as technology discloses the sovereign in its bloody violence. Notwithstanding, talk of blood and bodies, and reflecting on Nazism, this “juridical-political” reading of law and technology does not provide much guidance for researching law and technology. It tells us what the Frankenstein image already does: that law as technology has monstrous potential. It suggests that a site of values, beyond the instrumental law is needed to give guidance to how law regulates and controls technology. What is absent, ironically, is the lived dimension; what does it mean to live within a world structured this way and where, and what is the content, of the saving site of values? These questions suggest Heidegger’s thinking on technology and the reception of his thinking within “technology theory.”
Heidegger’s writings on technology should be considered from within his wider concerns with the impoverishment of ontology, and the need for a revitalized ontology to structure critical questions about modern existence. For Heidegger the Western metaphysical tradition forgot the question of Being. That is, the ontological task of thinking about being an entity disclosed to its own existence had been passed over in favor of “pragmatic” abstractions. Technology is important to Heidegger, not because of its monstrous violence, but because in its holding sway the forgetting of Being is absolute. Heidegger’s account of technology, or in his terms, the essence of technology is fourfold.
First, that technology is not machines, but a fundamental way of revealing the world as is. It reveals the world as standing reserved, as items stockpiles ready-at-hand to be used. Second, to be human means to be “thrown” into the world and our fate is to come to a dwelling in this finite totality. Third, that our “thrown-ness” means that Being is responsible to become aware of the world, to be open to its “truth.” Fourth, in saying that technology is a way of revealing, technology becomes located deeply and fundamentally in what it means to be human and to engage in the world.
This gives an ontological frame to law as technology. The ascendance of technology in Being means that law itself is seen as an object, in standing-reserved, ready to be deployed.
Heidegger’s account of technology is total and depressing. Technology is the mode of Being in the modern West, and in that mode of Being all existence, including law and humans, are conceived as objects in the stockpile to the exclusion of more “original,” “truthful” and authentic ways of Being-in the world. Heidegger influence on technology studies can be seen in the metaphysical and existential orientation of many of the seminal writers. Indeed, Marcuse, Ellul and more recently Borgmann and Fukuyama have grounded their critiques of technology on the basis that it is polluting the very being of humanity. There is a tragic aura surrounding this tradition. The totality of technology means that it is difficult to theorize strategies for overcoming. This can be seen in the juridical-political account of law as technology that revealed the need for some external value to limit law. Yet acceptance of Heidegger’s thesis means that there is very little left in humanity external to technology on which to ground non-technical values.
For Heidegger the “saving power” lay with technology’s ancient sibling, art. He thought that art remained authentically open to the world as is, not imposing stockpiled order on it. His turning to art has not been without its critics. Benjamin saw that art was also about techniques and imposing order on the world Benjamin can be seen as pointing towards an alternative direction from Heidegger and a metaphysical orientation. In technology studies this post-Heideggerian strand can be identified in Donna Haraway.
Haraway rejects metaphysical approaches to thinking about technology. Her appropriation of science fiction’s cyborg is without tragedy or romance. The cyborg is a materialist account of what it means to be human at the particular moment when technology has undermined the past certainties of existence. Haraway, notwithstanding these radical differences does basically articulate Heideggerian starting points; that humans are thrown into the world and must make sense of it and that for contemporary beings that making sense of occurs where technology has imposed itself over the very way that the world is revealed. Haraway argues for an approach to the study of technology that does not seek metaphysical totalities, and does not tries to save humanity from technology. The cyborg image declares that such an enterprise, if not fundamentally flawed, lacks meaning in the modern West. To live in the modern West means to be thoroughly technological and the task should be to come to terms with the messy “informatics of domination.” It is this task, I will argue in my next and final post, that should inform law and technology.
In summary, LTSS embodied law as technology. Legal theory shows that to hold law as technology is to see law tied to sovereignty, violence and death. Heidegger shows that law as technology discloses the totality of technology for Western Being. This could lead to depressing destinations; however, I suggest that post-Heideggerian technology writers like Haraway offer an alternative basis for the study of law and technology.
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