I’ll address the most important topic raised in Art’s introduction. Re: Galactica. I am planning to do some more writing on Galactica later in the year and that might answer the question whether I am ‘enjoying’ Season 4. The enjoyment has morphed into a compulsion...
On the matters at hand.
I am very glad that Art has suggested this topic for this year’s blog as it has allowed me to untangle some ideas that have lay undisturbed by my past thinking about law and technology.
Like Jennifer what follows are new ideas (at least for me) – I have welcomed this as a forum for expressing new thoughts and I would be very keen to engage in a dialogue. It also means that I do not have the solidity of a worked paper behind these thoughts, please forgive the roughness of ideas and expression.
In recent years due to teaching and editing responsibilities I have found myself to be becoming more and more a legal philosopher. This, I think, is a good discipline to bring to a discussion on human autonomy, technology and law. My argument in what follows is that specific engagements with law and technology tend to be scripted by stories that posit a fundamental relationship between human autonomy, technology and law. There is direction to my narrative. I examine three of these stories, the ‘technology’ story, the ‘legal’ story and the ‘autonomy’ story; concluding with the autonomy story as exposing the truth of the task at hand.
The Technology Story
The technology story begins with the populist definition of human as tool user. The origins of this story run deep in Western culture but a specific beginning lies in the paleonanthropological theorising of the nineteenth and early twentieth centuries, that the evolution of human, the specific chance relationship that accelerated natural selection, was tool-use by distant apelike ancestors. It was claimed that the chipping of flint and the domestication of fire set the cortex alight. Tool use facilitated greater resource utilisation which in turn gave stimulus to brain development which in turn lead to greater creativity and experimentation in tool use; and very rapidly (in evolutionary time), our hairy ancestors moved from flints and skins to not so hairy modern humans with Blackberries in Armani. In this story what distinguished modern humans was this tool use. The sub-text is autonomy. Tools and brain freed humans from nature. In Bernard Stiegler’s nice phrase from Technics and Time technology allowed ‘…the pursuit of the evolution of the living by other means than life. (Stiegler (1998): 135).’ In this story technology fundamentally relates to autonomy.
What this story about technology and human autonomy does not tell is law. Indeed, law’s absence telling. As a fundamental myth, the tool-using-free human (TUFH?), is before law. Law emerges later, as a second order consequence, a supplement laid over the top of humanity’s essential nature.
The state of debate in contemporary paleonanthropology is that this story, as an account of the evolution of Homo Sapiens, is problematic and simplistic. Further, deep ecologists have been keen to point out since the 1970s that human’s share the planet with other tool using species and a claim of superiority on the basis of tool use is anthropocentric. But it is a good story, a modern version of the myth in Plato’s Protagoras of Epimetheus, Prometheus and the gifts of traits, and is an entrenched, and often repeated, narrative within Western culture.
The essential elements of this story are repeated again and again in the assumption of techno-determinism. It is the meta-form that scripts the arguments of those that enthusiastically embrace technological change as a good in itself. It is also the narrative that animates the legal mind when it turns causally to the question of technology and thinks that law must ‘catch-up’ or that law is ‘marching behind and limping.’ In these phrases technology is placed at the core of what it means to be human, while law is located at the periphery. Its influence can also be seen in the ‘can’t’ or ‘shouldn’t’ regulate technological change arguments. Being technological is regarded as the essence of humanity and artificial attempts to regulate the ever flowering of this being will either fail (can’t) or end in debasement and corruption (shouldn’t).
The Legal Story
The legal story mixes the relationship of human autonomy, technology and law according to a different recipe. This story comes down to us from the social contract tradition of early modernity. In this story the roles of law and technology and reversed. The story goes that humans lived wretched (Hobbes) or simple (Locke) lives in the state of nature; living by passions with only the spark of reason to distinguish humans from animals. This state was the state of complete freedom. However, that spark of reason eventually lead to the realisation that a compact between humans could secure a more peaceful (Hobbes) or propertied (Locke) existence. The social contract was formed and, bingo, government, law, economy, society, global financial crisis, followed. In the social contract some freedoms were sacrificed to preserve others. Here law is fundamentally tied to human freedom at two levels; first it is the legal form of a contract that binds the natural human and second, freedom, reason and covenant combine to provide a justification for the posited legal system. One of the benefits, to use Hobbes phrase, of the ‘sovereign’s peace’, was technology. As humans were no-longer in the ‘war of all against all’ (Hobbes) or worrying about where the next meal would come from (Locke) they could get on with learning about the world and making use of that knowledge. Hence technology emerges as a second order consequence.
Like the technology story, this story permeates Western culture. It remains law’s formal story of origin and so ingrained is it in the modern jurisprudence that explanations of legal orders that do not include such concepts as nature, reason, freedom, sovereign, contract, rights, seem irrelevant. It shows its influence in law and technology scholarship. Fukuyama’s clarion call for law to ‘save’ humanity from biotechnology is an example. Driving Fukuyama’s argument is the social contract vision of the human as a reasoning being who is biologically vulnerable and this combination, on which the Western apparatus for the expression of freedom (government and market) has been constructed, is under threat by technology. The core needs to, and it is legitimate for it to, secure itself against change. In this account technology as a second order consequence is a threat but also a threat that can be met. There is a fundamental confidence in legal mastery of technology that is absence in the technology story.
To recap. The technology story posits human autonomy and technology as essential, with law a second order consequence. In the alternative the legal story narrates human autonomy and law as essential, with technology a second order consequence. My argument has been that much of the scholarship on law and technology emanates (that is draws fundamental structure) from either of these narratives (and sometimes, in the guise of practical-ness – both). What has happened in my telling of these stories has been a muffling of ‘autonomy.’ I moved from autonomy to freedom, and as treating these two words as synonyms is common I should have got away with it. But perhaps I shouldn’t have. This opens to the autonomy story.
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