This thesis concerns the intersections of law and technology, referred to here as
‘technical legality’. It argues that reflection on technical legality reveals the
mythic of modernity. The starting point for the argument is that the orthodox
framing of technology by law – the ‘law and technology enterprise’ – does not
comprehend its own speculative jurisdiction – that is, it fails to realise its oracle
orientation towards imagining the future. In this science fiction as the modern
West’s mythform, as the repository for projections of technological futures, is
recognised as both the law and technology enterprise’s wellspring and cipher.
What is offered in this thesis is a more thorough exploration of technical
legality through taking science fiction seriously. This seriousness results in two
implications for the understanding of technical legality. The first implication is
that the anxieties and fantasies that animate the calling forth of law by technology
become clearer. Science fiction operates as a window into the cultural milieu that
frames law-making moments. In locating law-making events – specifically the
making of the Prohibition of Human Cloning Act 2002 (Cth) and the Motor Car
Act 1909 (Vic) – with the clone ‘canon’ in science fiction (specifically Star Trek:
Nemesis (2002)) and H.G. Wells’ scientific romances, what is offered is a much
richer understanding of how the cultural framing of technology becomes law than
that provided by the ‘pragmatic’ positivism of the law and technology enterprise.
The second implication arises from the excess that appears at the margins
of the richer analyses. Exploring technical legality through science fiction does
not remain within the epistemological frame. Each of the analyses gestures
towards something essential about technical legality. The law and technology
enterprise is grounded on the modern myth, which is also the myth of modernity – Frankenstein. It tells a story of monstrous technology, vulnerable humanity and
saving law. The analyses of the Prohibition of Human Cloning Act 2002 (Cth) and
the Motor Car Act 1909 (Vic) show that this narrative is terrorised, that the saving
law turns out to be the monster in disguise; that the law called forth by technology
is in itself technological. In extended readings of two critically acclaimed science
fictions, Frank Herbert’s Dune cycle (1965–83) and the recent television series
Battlestar Galactica (2003–10), the essential commitments of technological law
are exposed. Dune as technical legality makes clear that technological law is truly
monstrous, for behind its positivism and sovereignty its essence is with the
alchemy of death and time. Battlestar Galactica as technical legality reduces
further the alchemical properties of technical law. Battlestar Galactica moves the
metaphysical highlight to the essence of technology and very nearly ends with
Heidegger’s demise of Being in ‘Enframing’: monstrous technology and
monstrous law reveal a humanity that cannot be saved. However, at the very
moment of this fall, Battlestar Galactica collapses the metaphysical frame,
affirming technological Being-in-the-world over empty ordering, life over death.
This free responsibility to becoming that emerges from Battlestar
Galactica reunites technical legality with the mythic of modernity. The modern
denial of myth, which allowed Frankenstein to narrate technical legality, has been
challenged. Free responsibility to becoming means a confidence with myths; it clears the way for the telling of new stories about law and technology.

Technical Legality: Law, Technology and Science Fiction

This article argues that scholarship on law and technology is a thoroughly speculative activity. The textual signifiers of this speculative orientation are the multiple incursions of science fiction that locate and justify lawyers writing about technology. Through a detailed examination of three law and technology literatures - on early space technology, IVF and virtual worlds - it will be shown that science fiction is the storehouse of images and imaginings that substantiate the legal projection of technological futures. When law confronts technology, science fiction is its speculative jurisdiction. The suggestion is that through a more through-going engagement with science fiction as the speculative jurisdiction, law could engage more adequately with the complexities and contingencies of technological change.

The Speculative Jurisdiction: The Science Fictionality of Law and Technology

With the growing financial importance of virtual worlds, crime spreads its wings. This paper looks at potential criminal acts in virtual worlds. The author concludes that real life criminal law is applicable on virtual activities when those activities break through the expectations participants and developers are legitimately allowed to have. Even though criminal law can be applied to virtual criminal behaviour, the question remains whether it is expedient to use criminal law and to prosecute virtual world participants. The answer to this question can, without empirical data, only be a political one and is therefore left open in the end.

Bart J. V. Keupink

Papers

Virtual Criminal Law in Boundless New Environments

Virtual criminal law in boundless new environments