Theory or Theorizing

Law and Technology Theory

I would like to extend a warm thank-you to Gaia for her introduction and also to Gaia, Frank and Jim for organising this forum. I would also like to thank my virtual colleagues who have contributed. In preparing for my posts I have had the pleasure reviewing earlier contributions and have again been struck with the thoughtfulness and thought provoking nature of what has gone before.

Like Lyria I apologise for the delay in posting. Australia rather inconveniently likes to be a whole day ahead of the North.

Concluding carries certain responsibilities regarding summary and pointing to the future. I hope in what I plan to say in the next few posts goes some way towards discharging these duties.
I want to begin by returning to Gaia’s opening post that posed two meta-issues: “Should there be a general theory of law and technology?” and “What form should such a general theory take?” As a democracy it seems that we, the contributors, have voted in-favour of the first proposition. The second proposition’s, due to its open texture, has understandably received different answers. I was particularly struck by the comments of interlocutor Mike Madison who challenged contributors to define more precisely the field of enquiry and questioned the possibility and potentiality of theory. Challenging lawyers to define is like challenging the sun to rise and I note that the art of defining has been well evidenced. It is the second challenge, concerning theory, that I wish to thematise over the next few entries. In particular I wish to offer a criticism, and a modest rectifying contribution, that there has yet to be an articulation of law and technology theory. As I am a lawyer I’ll start with definition.

“Theory” is a wonderfully malleable word, caught up with notions of scholarship and white towers. It has a disconnected, otherworldliness aura, especially in relation to another wonderfully malleable word “practice” with its suggestions of solidity, engagement and reality. And as legal scholars we would all be aware that “theory,” or “too theoretical” is the ultimate criticism of our class or course by students (Pat William’s depressing yet delightful account of her revolting (in both senses) students in The Alchemy of Race and Rights springs to mind). So my emphasis of theory needs some clarification.

What has occurred has been significant theorization. There have been two dimensions to this.

The first has been the constructing of a common discourse about law and society. I note that Art justified law and technology theory (which I would like to contribute to by offering the abbreviation LaTT) as helping to make sense of law and technology themes and help develop legal analysis. This has been that definitional enterprise that has been forthcoming with solar regularity. I do not want to disparage this activity, one does not need Stanely Fish to appreciate that development of a common language is fundamental to establishing a scholarly community.

The second has been social scientific theorizing about law and technology. Peter made this very clear when he suggested “theory should be about law, technology and society.” What I mean is there has been the clear beginning of a research field called law, technology and society studies that draws upon social scientific evidence – studies of technological diffusion, studies of the relationship between technological change and social structure, developmental psychology and legal and social history – to generate some propositions about the social impact of law and technology. The premise seems to be one of “practice,” that is to provide for better laws, better regulation and better policy outcomes in the future. I call this social scientific for the social has been turned into a series of empirical claims from which theorization into workable hypothesis can be undertaken. Now I do not wish to be seen to be rejecting such a project. I have contributed to it in my historical study of motor vehicle legislation and in my current research into the cultural background of the 2002 Australian human cloning and embryonic stem cell laws. Further, I am managing editor of a journal whose brief it is to publish just this kind of scholarship. This is important work, and immeasurably more sophisticated then the “legal hysteria” of much doctrinal based law and technology writing (ie technology has changed means law irrelevant/outdated, means policy and social goods secured by law at threat/destroyed, means Warning! Warning! Danger Will Robinson!) As Law, Technology and Society Studies (LTSS) this research has significant potential to (a) construct an archive of past law and technology interactions, (b) develop a significant literatures analysing that archive, (c) able to credibly advise policy and lawmakers about legal responses to emergent technology/technological change/changing social uses of technology.

But LTSS is not, I submit, LaTT. And it is not because of two, related, absences. The first is that in the galaxy of definitions opening before us, law remains surprising undefined. What theory of law animates this discourse? And the second relates to technology’s definition. I gracefully acknowledge that definitions of technology, or at least identifying elements of the technical, have been made. A commonality has been the claim that technology has an absent future. By this I mean there is an assumption that technology’s future is unknowable – the preferred expression was uncertain – and that law (and hence LTSS) needs to stand ready and vigilant to respond to technology’s potentially radical changes.

In my next post I want to take these two absences as a starting point for demarking a theory of law and technology. I do so through remembering the ur-text for the modern West’s thinking on technology – Frankenstein.