Kieran Tranter

Abstract: 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.

Abstract: 1.. HARD CASES 5. Legal Rights A. Legislation . . . We might therefore do well to consider how a philosophical judge might develop, in appropriate cases, theories of what legislative purpose and legal principles require. We shall find that he would construct these theories in the same manner as a philosophical referee would construct the character of a game. I have invented, for this purpose, a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules. I suppose that Hercules is a judge in some representative American jurisdiction. I assume that he accepts the main uncontroversial constitutive and regulative rules of the law in his jurisdiction. He accepts, that is, that statutes have the general power to create and extinguish legal rights, and that judges have the general duty to follow earlier decisions of their court or higher courts whose rationale, as l