Instrumental and Substantive Theories of Technology

In my first post, I'll set out some background on different views on the relationship between human autonomy and technology. Technology thinkers are sometimes broken down into two groups: instrumental and substantive theorists (for discussion, see, for example, Andrew Feenberg, Transforming Technology: A Critical Theory Revisited (Oxford University Press, 2002).

Generally speaking, instrumental theories (or perspectives) tend to treat technology as a neutral tool without examining its broader social, cultural and political impacts. The instrumentalists are often identified with strains of thought that respect human autonomy in matters of technology, in part because technology itself is perceived to be neutral in its impact on human affairs, and in part because of the emphasis upon human willpower to decide whether to adopt technologies.

In contrast, substantive theories emphasize the ways in which technological systems (or 'structure') can have a substantive impact on individual and community interests that may differ from their intended impact: substantive theorists sometimes emphasize how technological structure can overcome human willpower.

Consider cell phones. They were initially developed to enable remote wireless communication. But most cell phones today have embedded GPS chips that give off information concerning the cell user's geographic location (this information is often stored in permanent digital format by telephone companies). Police sometimes tap into this information as part of their investigation into alleged criminal/terrorist activities. In other words, we started out with a communication device but now carry around a state-tracking device.

How can these theories or perspectives influence legal analysis?

Instrumentalists, like Alfred E. Neuman, would tend to say, 'What, me worry?' After all, an instrumentalist might maintain, individuals can choose to carry a cell phone (or not), and hence there is no real policy problem.

A substantive theorist, on the other hand, might worry that our societies are now filled with these tracking devices, potentially leading to a variety of state abuses (for example, a government could develop software to scan through vast telco databases to track the movements of individuals despite no evidence of individual wrong-doing). While it is true that individuals can choose not to carry a cell phone, the costs of doing so may be prohibitive (for example, a workplace may require a cell phone) or a cultural norm may encourage cell phone usage (ask any teenager).

My co-author Jason Pridmore and I reviewed (at pp. 474-494) some of the important works in both theoretical camps in an article entitled A Synthetic Theory of Law and Technology. The paper came out in a symposium issue of law and technology perspectives. In this work, we used a synthesis of instrumental and substantive perspectives to inform legal analysis (which I blogged about previously).

In my next post, I'll discuss how the substantive theories can be used to help develop laws and policies in the context of post-9/11 government surveillance surveillance.

(On a related note, we hosted a law and technology art exhibition at our law school a few years ago, and my poster submission lex ex machina (Latin for 'law in the machine') explored how the machine-like attributes of the law influence legal actors and the path of the law.)