Technology

New Trajectories in Law

Penny Crofts, Honni van Rijswijk

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000384031
• Edition: 1
• Topic: Computer Science
• Subtopic: Computer Science General
• Index: Computer Science

Placing contemporary technological developments in their historical context, this book argues for the importance of law in their regulation.

Technological developments are focused upon overcoming physical and human constraints. There are no normative constraints inherent in the quest for ongoing and future technological development. In contrast, law proffers an essential normative constraint. Just because we can do something, does not mean that we should. Through the application of critical legal theory and jurisprudence to pro-actively engage with technology, this book demonstrates why legal thinking should be prioritised in emerging technological futures. This book articulates classic skills and values such as ethics and justice to ensure that future and ongoing legal engagements with socio-technological developments are tempered by legal normative constraints.

Encouraging them to foreground questions of justice and critique when thinking about law and technology, the book addresses law students and teachers, lawyers and critical thinkers concerned with the proliferation of technology in our lives.

1Stories of technology

The role of legal thinking in shaping techno-legal worlds

Rapid changes in technology are of urgent significance to law—and conversely, law and legal thinking are uniquely relevant to the future direction of technology. The main objective of this book is to provide a robust legal story about technological developments. To achieve this aim, we draw upon both classic jurisprudence and critical legal theory to explain, critique and advocate for law’s role in responding to technology: in protecting rights, protecting people from harm, and in establishing frameworks of responsibility. We move beyond the current terrain of commentary on law and technology, which tends to focus on the (technical) purposes of specific laws, to a more general question about the purpose of law in this domain. Although “justice” is a contentious concept that is subject to debate, it is also a powerful concept, through which we analyse and evaluate law’s relationship with technology. The set of questions raised by foregrounding justice—through the traditions of jurisprudence and critical legal studies—leads us to show what legal thinking can uniquely provide to current debates about the threats and potential of technology. Paradoxically, this doesn’t mean new legal thinking per se, but rather going back to the basics of jurisprudence and critical legal theories and remembering what is unique about legal thinking. We need to analyse current and future socio-legal worlds that are being created through technology, noting that technology has long been part of law’s work and law’s domains. Throughout, we also recognise the significant shift in power that has been brought about by the increasing importance of multinational corporations to social and economic life, and the ways the corporate form is intimately connected to technology. We interrogate the legal form of the corporation and how we might shape the justice it offers.

Analysis of law’s engagement with other disciplines and institutions has a long history,¹ and the engagement of law with technology is arguably one more interdisciplinary example. We argue that it is urgent that we strengthen law’s story regarding technology. Technological developments are focused on overcoming physical and human constraints. In contrast, law proffers an essentially normative constraint: just because we can do something, does not mean that we should. Through the application of critical legal theory and jurisprudence to proactively engage with technological problems, this book demonstrates why legal thinking should be prioritised in emerging technological futures.

Our method draws from two established movements in critical legal theory and jurisprudence. First, a critical legal genealogy of the relationship between law and technology, highlighting law’s long history of engagement with, facilitation and adjudication of, technological innovation. Second, an elucidation of theories of justice and technology, drawing on contemporary and historical thinkers. We also draw on representations of technology from both mainstream/popular and emergent/radical culture to explain key problematics and look to the ways in which popular justice thinks through the juridical implications of technology.

This chapter will consider stories of technology in law and analyse how these stories shape the possibilities of justice. Specifically, we will focus on the ways in which the dominant narratives are problematic because they downplay or even negate our ability to intervene in socio-legal worlds created through technology. In contrast, we argue that law and legal thinking should play key roles in technological innovations. This chapter provides a framework in which to situate the significance of major philosophical and jurisprudential approaches to technology. Jurisprudence and critical legal theory can contribute not only by analysing and responding to social change caused by technology, but also by shaping these emerging techno-legal worlds. Broadly speaking, jurisprudence gives us a history of and method of thinking through the emerging relationships between law and technology. Critical legal thinking gives us the means to think of the political, economic and social implications of the conceptual and material contexts of emerging technology.

Dominance of technology

There are multiple definitions of “technology”—and these definitions matter, as they impact upon the perceived potential and limitations of technology. The Oxford English Dictionary notes that there are multiple origins of the word, with Edward Phillips’s definition in the New World of Words in 1706 proffering one of the earliest sources of the word in a way that we recognise: ‘a Description of Arts, especially the Mechanical’. Brian Arthur adopts a broader definition of technology, as ‘the methods, practices and devices a culture uses to make things function’.² You can see that both these common definitions view technology as a tool and highlight the lack of constraint inherent in the concept of technology. Technology focuses on what can be done, rather than the normative question of whether it should be done. Our focus in this book is to emphasise that technology cannot be separated out from its political, economic and social context—nor from the historical and material conditions from which it arises. In other words, we discourage the idea of thinking of technology through the trope of the neutral tool that can be taken up in various contexts—rather, we encourage the reader to think of technology as essentially bound up in the conditions of its production.

We now live in a world that is permeated and saturated by technology, and the acceleration in technological developments has exponentially increased its dominance in our daily lives. We have become completely dependent upon technological systems—to eat, work, purchase, communicate and travel; with the advent of sleep trackers, the dominance of technology continues even while we are sleeping. While the various individual technologies on which we depend may appear to be separate, we can think of them constituting a vast system of interdependent technologies. Kevin Kelly has coined the term technium to ‘encapsulate the grand totality of machines, methods and engineering processes’ in and of this system.³ The world is structured around a huge, interconnected, coordinated, incorporated system, with computers at the core. This technium mediates between us and everyone and everything else. The dominance of the technium mediates not only how we relate to each other but also, Kelly argues, patterns the structures of institutions and civilization. We are so oriented to and around technology that JM van der Laan has argued that we now have a ‘technocentric culture’⁴ where ‘nothing else matters as much as technology’. It has been argued that the values, laws and determinations of technology begin to trump other values and meanings. For example, Allan Hanson says that legal thinking itself has been technologised. With the advent and increasing significance of legal databases in the use of law, ‘lawyers are beginning to think of the law as a collection of facts and principles that can be assembled, disassembled, and reassembled in a variety of ways for different purposes’.⁵ According to these views, law is one of the many major sites—alongside government, healthcare, education—that is now founded upon, constituted and predetermined by technology.

Critical legal theory: Interrogating key concepts

As we consider law’s relation to technology, we should never lose sight of the significance of law’s role in technologies related to slavery and colonialism—legacies that will be taken up further in Chapter 5. As just one example of the work, we should consider within the rubric of “law and technology”. Ian Baucom argues that the roots of speculative finance and global capitalism can be read in the eighteenth-century case concerning the slave ship Zong, and the practices and institutions of which it was a part.⁶ In 1781, 133 people were murdered when they were jettisoned from the Zong. The subsequent legal case was not a murder case but an insurance claim for loss of property. On its journey from the Cape Coast to Jamaica, encountering shortage of provisions as a result of navigational error, Captain Luke Collingwood ordered that 133 African slaves be thrown overboard. Later in court, Captain Collingwood argued that the scarcity of fresh water made this act necessary, to preserve the remainder of the human cargo, as well as the crew. Further, he expected that the loss would be covered by the ship’s insurance policy. Baucom argues that the event is central to understanding not only the specific history of the trans-Atlantic slave trade, but the foundations and ethical frameworks of modern capital more widely—not as an isolated tragedy, but as part of a continuity of logic. We would add that similarly, it is essential to understanding law’s complicity in responding to violence. Baucom shows that the murders and the trials that followed revealed processes of speculative finance and capital accumulation, processes that continue today. In contemporary life, finance capital is abstracted and this effect has been heightened by technology, but we should never lose site of the material histories on which they are based—and that law’s role in these histories has been unbroken.

Stories of technology

Given technology’s ubiquity, the types of stories we tell as a society and as legal thinkers not only describe the socio-legal world of technology, but also construct the possibilities of that world. In Narratives of Technology, JM van der Laan provides an overview of the mainstream stories and myths that are told about technology. Van der Laan identifies three main myths of technology – idealistic, dystopian and ambivalent—that describe and prescribe how we understand and relate to technology. We use van der Laan’s taxonomy below as it provides a means of framing the key stories of the last century about social and legal responses to the exponential growth of technology.

Affirmation and technological optimism

The first category is idealistic and it champions technology. These optimists essentially express the belief that ‘the machine is going to take over’—and that this is a good thing.⁷ According to these accounts, technology is, at a minimum, normatively neutral. Many accounts assert that technology, particularly the internet, is normatively positive: inherently democratic, egalitarian and fair.⁸ Whether normatively neutral or inherently good, technology can be harnessed for the greater good. This narrative is based on an ideal that technological development provides extraordinary power and a life without limits, inextricably linking technological developments with the inevitability of progress.⁹ David Nye has explored how different idealistic accounts of technology were essential to the “making” of the United States of America.¹⁰ On this account, technologies such as the axe, gun, mill, canal, railroad, cars and dam, represented and facilitated progress and optimism. On this account, technologies ‘created’ and ‘made’ America what it is.¹¹ Nye has also noted that technology is proffered as a solution to all problems, what he describes as ‘a master narrative of technological amelioration’. All of humanity will be better off, even when we are replaced by robots who perform better, cheaper, more efficiently and consistently. Similarly, Van der Laan has argued that the idealistic myth places technology in the role of hero, overcoming challenges that previously only heroes could overcome—with new fabulous powers such as speed, agility, endurance and wisdom.¹² Technology is so omnipresent, omniscient and omnipotent (especially as embodied in the internet) that it is almost as though it is a divine authority. Like God, it is ‘incomprehensible and impossible to master’¹³. This utopian account conveys a set of meanings and values including efficiency, progress, freedom, and power and because of its mythical status, t...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• 1 Stories of Technology: The Role of Legal Thinking in Shaping Techno-Legal Worlds
• 2 Historical examples of law and technology: Civil law, criminal law, slavery and colonialism
• 3 Balance of power and pushing back through the rule of law
• 4 Big Tech, The Corporate Form, and Self-Regulation
• 5 Critical Legal Theory and Encountering Bias in Tech
• Index